RECON 


SAMUEL    FREEMAN    MILLER 

ASSOCIATE  JUSTICE  OF  THE 
SUPREME  COURT  OF  THE 
UNITED  STATES  1862-1890 


IOWA    BIOGRAPHICAL    SERIES 

EDITED    BT    BENJAMIN     F.    SHAMBAUGH 


SAMUEL  FK1 


TH    HIAJIDOTOHq    A 

VT8I    KI  KSXAT 


CHARLES   NOBLE   G  4.  I 


THE  STAT  OF  IOWA 

IOWA    CITY    IOWA    1 


SAMUEL   FREEMAN    MILLER 

FROM   A    PHOTOGRAPH   BY 
FASSETT   TAKEN    IN     1877 


IOWA    BIOGRAPHICAL    SERIES 

EDITED    BY    BENJAMIN    F.    SHAMBAUGH 


SAMUEL  FREEMAN  MILLER 


BY 


CHARLES   NOBLE   GREGORY  A.M.  LL.D. 


THE  STATE  HISTORICAL  SOCIETY  OF  IOWA 
IOWA    CITY    IOWA    1907 


l\ 


EDITOR'S  INTRODUCTION 

THE  career  of  Samuel  Freeman  Miller  is 
that  of  an  eminent  jurist  who  for  twenty- 
eight  years  served  as  Associate  Justice  of 
the  Supreme  Court  of  the  United  States. 
He  was  one  of  a  group  of  men  of  command- 
ing eminence  (to  which  Grimes,  Kirkwood, 
Harlan  and  Wilson  belong)  early  contrib- 
uted by  the  Commonwealth  of  Iowa  to  the 
public  service  of  the  United  States. 

For  the  biographer  the  life  of  a  justice  of 
the  Supreme  Court  of  the  United  States 
does  not  afford  the  same  rich  opportunities 
as  surround  the  lives  of  those  whose  activi- 
ties have  been  in  the  direction  of  legislation, 
administration,  and  the  affairs  of  practical 
politics — albeit  the  historical  importance  of 
the  work  of  the  jurist  is  as  significant  in  the 
growth  of  social  institutions  as  that  of  the 
statesman. 


974465 


Viii  EDITOR'S  INTRODUCTION 

Justice  Miller's  contributions  to  history 
are  chiefly  to  our  system  of  Jurisprudence 
—more  especially  to  our  Constitutional 
Law.  And  so  his  biography  must  very  nat- 
urally be  brief  or  consist  of  many  digres- 
sions into  the  principles  of  the  Common 
Law  and  of  the  Constitution  of  the  United 
States.  Happily  the  author  of  the  bio- 
graphical essay  which  follows  has  refrained 
from  excursions  into  the  field  of  Jurispru- 
dence which  must  have  tempted  him  at 
many  points. 

For  those  who  desire  first-hand  knowl- 
edge of  Justice  Miller's  views  and  opinions, 
four  appendices  have  been  added.  These 
include  three  addresses  and  an  exhaustive 
calendar  of  the  cases  in  which  Justice  Mil- 
ler wrote  opinions  while  on  the  Supreme 
Bench.  From  this  calendar  it  is  interest- 
ing to  observe  that  in  the  twenty-eight  years 
of  his  Associate  Justiceship,  Mr.  Miller 
is  credited  with  seven  hundred  eighty-three 
opinions,  of  which  one  hundred  sixty-nine 
are  dissenting  opinions.  One  hundred  and 


EDITOR'S  INTRODUCTION  ix 

forty-one  of  his  opinions  relate  to  Constitu- 
tional Law. 

Much  of  personal  interest  in  the  life  of 
Mr.  Miller  was  doubtless  lost  forever  with 
the  unfortunate  destruction  of  his  private 
letters  and  correspondence  soon  after  his 
death. 

BENJ.  P.  SHAMBAUGH 

OFFICE  OF  THE  SUPERINTENDENT  AND  EDITOR 

THE  STATE  HISTORICAL  SOCIETY  or  IOWA 

IOWA  CITY 


AUTHOR'S  PREFACE 

THIS  essay  on  the  life  and  services  of 
Samuel  Freeman  Miller,  Associate  Justice 
of  the  Supreme  Court  of  the  United  States, 
has  been  undertaken  at  the  request  of  The 
State  Historical  Society  of  Iowa.  It  has 
been  completed  under  many  conflicting  la- 
bors and  is  submitted  with  diffidence,  espe- 
cially to  the  many  who  bear  Justice  Miller 
in  personal  remembrance. 

Nothing  but  casual  notices  and  brief  ar- 
ticles and  addresses  seems  to  have  been 
printed  concerning  him  up  to  this  time. 
The  writer  was  not  so  fortunate  as  to  get 
either  letters,  journals,  papers,  informa- 
tion, or  reminiscences  from  his  kindred 
or  surviving  intimates,  except  that  Judge 
Frank  Irvine,  Justice  Miller's  nephew,  to 
whom  grateful  thanks  are  tendered,  very 
obligingly  gave  such  information  as  he  had 
concerning  the  latter 's  family. 


xii  AUTHOR'S  PREFACE 

The  facts  here  presented  have  been  gath- 
ered from  many  sources  and  are,  it  is  hoped, 
supported  and  supplemented  by  the  Notes 
and  References  given  in  all  important  mat- 
ters at  the  close  of  the  text. 

CHARLES  NOBLE  GREGORY 

OFFICE  OF  THE  DEAN  OF  THE  COLLEGE  OF  LAW 
THE  STATE  UNIVERSITY  OF  IOWA 


CONTENTS 

I.     EARLY  YEARS 1 

II.    APPOINTMENT  TO  THE  SUPREME  COURT  . .  9 

III.  ASSOCIATE  JUSTICE  OF  THE  SUPREME  COURT  16 

IV.  MISCELLANEOUS  WRITINGS  AND  ADDRESSES  38 
V.     JUSTICE  MILLER — A  CHARACTERIZATION  . .  51 

NOTES  AND  REFERENCES 67 

APPENDIX  A.  ADDRESS  ON  THE  FORMA- 
TION OF  THE  CONSTITUTION 83 

APPENDIX  B.     ADDRESS  ON  THE  USE  AND 

VALUE  OF  AUTHORITIES 121 

APPENDIX  C.  ADDRESS  ON  THE  CONFLICT 
BETWEEN  SOCIALISM  AND  ORGANIZED  SO- 
CIETY    141 

APPENDIX  D.     CALENDAR  OF  OPINIONS   . .  173 

INDEX  .  209 


PLATES 

SAMUEL  FREEMAN  MILLER,  from  a  photograph 

taken  in  1877 frontispiece 

SAMUEL  FREEMAN  MILLER,  from  a  photograph 

opposite    16 

SAMUEL  FREEMAN  MILLER,  from  an  oil  paint- 
ing in  the  Historical  Department  at  Des 
Moines opposite  51 

THE  MASSACHUSETTS  AVENUE  HOME  . .  opposite    61 


EAKLY  YEARS1 

IN  the  history  of  the  United  :^t^s  two 
periods  must  always  excite  especial! ijxteregt i: 
that  of  the  revolt  from  Engl&nd,*  &nd 'the 
consequent  framing  of  an  independent  con- 
stitutional government;  and  that  of  the 
" Great  Rebellion"  of  the  sixties,  and  the 
consequent  amendment  of  the  Constitution, 
the  extinction  of  slavery,  and  the  vastly 
closer  union  of  the  States.  Each  had  its 
leading  figure,  overshadowing  all  the  others. 
Washington  stands  as  the  military  and  civil 
chief  in  the  first ;  Lincoln  as  the  civil  chief 
in  the  latter  period.  There  were  certainly 
great  men  serving  under  Washington,  but 
his  predominance  is  unquestioned  in  both 
peace  and  war.  Lincoln's  predominance  in 
peace  is  quite  as  undoubted,  but  Grant  was 
the  great  military  leader  of  the  last  struggle. 
In  another  department  of  government, 
the  Judicial,  as  Chief  Justice  Fuller  has 
said,  "  Great  problems  crowded  for  solu- 


2  SAMUEL  FREEMAN  MILLER 

tion."  Each  period  presented  new  and  al- 
most overwhelming  difficulties  which  were 
presently  met  in  the  former  by  the  adoption 
of  the  Federal  Constitution  and  in  the  lat- 
ter by  the  far  reaching  amendments  to  it. 
Each  period  developed  great  jurists  who 
were  able  to  construe  these  documents,  to 
determine  these  " problems"  masterfully 
and  in-  accord  with  the  permanent  judg- 
ments of  men.  The  greatest  of  these  in  the 
period  following  the  Revolution,  especially 
in  the  construction  of  the  new  Constitution, 
was,  beyond  dispute,  John  Marshall,  the 
revered  Chief  Justice.  Without  the  rank 
or  distinction  which  belongs  to  the  Chief 
Justiceship,  the  controlling  mind  in  the  so- 
lution of  the  momentous  questions  of  con- 
stitutional construction  during  the  Rebel- 
lion and  the  period  of  Reconstruction,  in- 
volving the  scope  and  meaning  of  the  great 
amendments,2  was  Samuel  Freeman  Miller, 
of  Iowa,  Associate  Justice  of  the  Supreme 
Court  of  the  United  States,  the  subject  of 
this  essay. 

Samuel  Freeman  Miller  was  born  at  Rich- 
mond, Kentucky,  April  5,  1816,  as  Judge 
Embry  said  after  his  death,  "  twenty-four 
miles  from  the  home  of  Henry  Clay,  and 


EARLY  YEARS  3 

twelve  miles  from  the  historic  spot  where 
Daniel  Boone  laid  the  first  rude  foundations 
of  civilization  on  the  soil  of  Kentucky."3  He 
was  a  poor  boy,  the  son  of  a  farmer  of  Ger- 
man ancestry  who  had  emigrated  from 
Pennsylvania  to  Kentucky  in  1812  and  mar- 
ried there  the  daughter  of  a  family  which 
had  come  to  Kentucky  from  North  Caro- 
lina. The  first  twelve  years  of  boyhood 
were  spent  on  his  father's  farm.  After  that, 
and  until  he  was  fourteen  years  old,  he  stud- 
ied at  the  schools  of  Richmond,  including  a 
high  school  spoken  of  as  " excellent."  He 
left  school  to  work  in  a  local  drug  store  as  a 
clerk.  There  medical  books  fell  in  his  way 
and  he  read  them  eagerly,  planning  to  be- 
come a  physician.  In  1836  he  entered  the 
Medical  Department  of  Transylvania  Uni- 
versity (now  the  University  of  Kentucky), 
and  graduated  therefrom  in  1838.  He  went 
back  to  Richmond  to  practice  his  new  pro- 
fession, but  shortly  removed  to  Barbours- 
ville,  Knox  County,  Kentucky,  a  little  settle- 
ment of  four  hundred  inhabitants  in  the 
mountains,  not  far  from  Cumberland  Gap 
and  near  the  Tennessee  and  Virginia  bor- 
ders. There  he  practised  as  a  country  doc- 
tor with  no  competition  for  over  ten  years, 


4  SAMUEL  FREEMAN  MILLER 

riding  day  and  night,  with  his  drug  store  in 
his  saddle  bags,  over  the  rough  mountain 
roads  of  that  sparsely  settled  region,  to  min- 
ister to  the  sick,  where  none  were  rich  and 
most  were  very  poor. 

Certain  influences  began,  however,  to  al- 
ienate him  from  this  useful  but  obscure  vo- 
cation. A  debating  society  in  Barboursville 
seems  to  have  offered  its  principal  social 
and  intellectual  diversion,  and  there  Miller 
discovered  and  exercised  logical,  and  con- 
troversial powers  which  gave  him  the  lead- 
ership. He  shared  the  office  of  a  local  law- 
yer4 and  began  to  look  into  law  books. 
Gradually  his  interest  and  his  ambition 
turned  away  from  the  medical  profession 
until  he  felt  an  utter  aversion  to  it.  During 
these  years  he  filled  his  unoccupied  time  by 
reading  law  (doing  this  secretly  lest  it  in- 
jure his  medical  practice),  and  in  1847  was 
at  last  admitted  to  the  bar,  when  over  thirty 
years  of  age. 

He  was  an  enthusiastic  follower  of  Cas- 
sius  M.  Clay.5  And,  more  for  the  sake  of 
the  Whites  than  from  sympathy  for  the 
Blacks,  he  was  strongly  opposed  to  slavery. 
He  entered  politics,  and  seems  to  have  been 
a  candidate  for  County  Attorney.  Then  he 


EARLY  YEARS  5 

sought  to  be  chosen  a  delegate  to  the  State 
Constitutional  Convention,  but  seems  to 
have  been  supplanted  by  another  candidate 
from  his  own  county.  He  vigorously  sup- 
ported Gen.  Taylor  for  the  Presidency. 
Taylor  was  elected  and  Kentucky  gave  him 
its  twelve  electoral  votes;  but  the  attempt 
to  amend  the  State  Constitution  so  as  to  do 
away  with  slavery  failed,  and  Miller,  who 
had  with  characteristic  vehemence  sup- 
ported it,  was  at  outs  with  his  party  and  his 
community.  He  decided  that  he  would  no 
longer  live  in  a  slave  State. 

Mr.  Miller  was  now  nearly  thirty-five 
years  old,  married,  and  the  father  of  two 
children.  In  1850  he  took  his  slaves  with 
him  to  Keokuk,  Iowa,  and  there  with  uncal- 
culating  generosity,  emancipated  them.  In 
Keokuk  he  established  a  home  and  opened 
a  law  office.  With  surprising  rapidity,  he 
attained  a  leadership  of  the  bar  of  the 
State  and  of  the  new  Republican  party  with 
which  that  State  has  been  so  conspicuously 
identified.  There  was  not  then  a  mile  of 
railroad  in  the  State  of  Iowa,  as  Miller  long 
after  wrote.  He  entered  into  partnership 
with  Lewis  E.  Reeves;6  and  later,  on  Mr. 
Reeves  7s  death  (in  1854),  having  been  some 


6  SAMUEL  FREEMAN  MILLER 

time  a  widower,  he  married  Mrs.  Reeves  as 
his  second  wife. 

As  Judge  Woolworth,  of  Omaha,  his  inti- 
mate friend  and  associate  said:  "It  was  a 
favorite  theory  of  Judge  Miller  that  a  coun- 
try town  is  the  best  place  for  a  young  law- 
yer. He  valued  its  opportunities  for  reflec- 
tion and  study;  its  close  and  sharp  contact 
with  various  characters ;  the  development  of 
individuality  which  it  favored.  He  thought 
these  conditions  aided  the  slow  and  there- 
fore solid  growth  of  self-dependence  and 
force  of  character  which  make  the  strong 
lawyer.  These  advantages  he  often  set  off 
against  those  of  the  large  city  and  gave  them 
preference."7 

The  force  of  his  personality  and  his  power 
of  application  were  equally  extraordinary; 
and  within  ten  years  he  was  generally  con- 
sidered "the  ablest  man  of  his  age  at  the  bar 
in  his  state/'  though  but  little  known  be- 
yond its  borders.  Mr.  Attorney  General 
Miller,  in  addressing  the  Supreme  Court  at 
the  time  of  Justice  Miller's  death  said :  "In 
1862,  President  Lincoln  found  Mr.  Miller 
in  Iowa,  as  a  few  years  before  the  country 
had  found  Mr.  Lincoln  in  Illinois,  devoting 
his  life  to  a  somewhat  obscure  and  unre- 


EARLY  YEARS  7 

munerative,  though  for  the  place  and  time, 
successful  practice  of  the  law."7 

In  the  many  eulogistic  addresses  delivered 
and  articles  printed  concerning  him  at  his 
death,  it  is  often  stated  that  he  steadily  de- 
clined all  political  office  and  devoted  himself 
consistently  and  exclusively  to  his  profes- 
sion. This  is  a  common  euphemism  concern- 
ing eminent  men,  and  in  this,  as  in  most 
cases,  it  seems  to  be  untrue.  His  political 
activity  in  Kentucky  we  have  mentioned. 
Hon.  Elijah  Sells,  formerly  Secretary  of 
State  of  Iowa,  has  printed  a  letter  saying 
that  Mr.  Miller  was  a  candidate  for  Gov- 
ernor of  Iowa  when  Governor  Kirkwood 
was  nominated  a  second  time,  and  that  Mil- 
ler appealed  to  Sells  earnestly  for  help,  say- 
ing: "You  can  nominate  me  if  you  will. 
You  were  for  Kirkwood  before,  you  ought 
to  be  for  me  now."  Mr.  Sells  says  Kirk- 
wood was  nominated  and  Miller's  friends 
then  tried  to  induce  Sells  to  be  a  candidate 
against  him.8 

Governor  Kirkwood  was  reflected  by  an 
overwhelming  majority,  and  later  became 
Senator  of  the  United  States  and  Secretary 
of  the  Interior.9  Miller,  writing  of  his  old 
rival  in  1889,  says:  "He  has  now  retired 


8  SAMUEL  FREEMAN  MILLER 

from  public  life  and  is  enjoying  a  well  de- 
served rest,  with  a  popularity  not  surpassed 
among  the  citizens  of  the  State."10 

Kirkwood,  while  Governor,  aided  in  se- 
curing Miller's  appointment  to  the  bench, 
and  thus  removed  from  the  State  a  danger- 
ous and  powerful  political  rival. 

Laurels  are  seldom  of  spontaneous  growth 
in  our  public  life.  They  have  generally 
been  vigorously  cultivated  for  years  by  the 
sweat  of  the  brow  which  they  at  last  adorn. 
It  was  plainly  so  in  Miller's  case. 


II 


APPOINTMENT  TO  THE  SUPREME  COURT  OF 
THE  UNITED  STATES 

IN  1862  the  Supreme  Court  of  the  United 
States  was  reorganized  as  to  its  circuits;11 
and  two  vacancies  in  the  court  were  created 
by  the  death  of  Mr.  Justice  Daniel  and  the 
resignation  of  Mr.  Justice  Campbell.12  The 
passage  of  the  act  of  reorganization  was  said 
to  have  been  delayed  by  the  rival  claims  of 
aspirants  from  the  different  northwestern 
States  for  the  judicial  seats  to  be  filled.  Mr. 
Miller  had  secured  the  recommendations  of 
the  bars  of  his  State  and  of  Minnesota,  Kan- 
sas, and  Wisconsin. 

The  National  Cyclopaedia  of  American 
Biography  says,  speaking  of  his  appoint- 
ment to  the  bench,  that  Mr.  Miller  was  per- 
sonally on  terms  of  warm  friendship  with 
Mr.  Lincoln,  but  that  "it  was  not  this  alone 
that  brought  to  him  this  high  position. ms 
This  seems  erroneous.  The  Hon.  John  A. 
Kasson,  formerly  member  of  Congress  from 
Iowa  and  our  Minister  to  Austria  and 


10  SAMUEL  FREEMAN  MILLER 

Germany,14  has  printed  a  letter  in  which  he 
says  that  Mr.  Miller  was  recommended  for 
appointment  by  the  bars  of  several  States 
in  the  northwest  circuit,  and  he  adds: 
"When,  at  his  request,  I  called  on  Presi- 
dent Lincoln  to  ascertain  the  cause  of  delay 
in  his  nomination,  I  found  that  his  reputa- 
tion as  a  lawyer  had  not  then  even  extended 
so  far  as  to  Springfield,  Illinois,  for  the 
President  asked  me  if  he  was  the  same  man 
who  had  some  years  before  made  a  frontier 
race  for  Congress  from  the  southern  district 
of  Iowa,  and  had  trouble  about  the  Mormon 
vote."  Mr.  Kasson  corrected  this  impres- 
sion and  told  the  President  that  he  deemed 
impartiality  and  equanimity  essential  quali- 
ties of  Mr.  Miller's  mind,  and  that  "nature 
herself  had  fitted  him  for  the  administra- 
tion of  justice."15 

Mr.  H.  W.  Lathrop  published,  after 
Judge  Miller's  death,  an  account  of  an  in- 
terview with  President  Lincoln  in  his  be- 
half shortly  before  his  appointment,  which 
he  says  was  during  the  war  when  the  Presi- 
dent was  called  upon  frequently  to  make 
military  appointments.  During  the  pen- 
dency of  the  matter,  "while  Governor  Kirk- 
wood  was  presiding  over  the  affairs  of  the 


APPOINTMENT  TO  SUPREME  COURT  H 

state,  he  happened  to  be  in  Washington, 
when  he  was  invited  by  Senator  Harlan,  in 
company  with  a  couple  of  the  representa- 
tives from  this  State,  to  call  upon  Mr.  Lin- 
coln and  urge  the  appointment  of  the  Jus- 
tice. In  calling  upon  him  they  found  him 
sitting  sidewise  at  his  writing  table,  with  his 
long  legs  around  each  other  in  a  grapevine 
twist,  and  after  a  little  formal  conversation, 
Mr.  Harlan,  as  spokesman  of  the  callers, 
said :  *  We  have  called  Mr.  President,  to  see 
you  again  in  regard  to  that  appointment,  as 
we  are  anxious  that  it  should  be  made,'  to 
which  the  Governor  added,  'It  is  one  that 
would  give  great  satisfaction  to  the  people 
of  Iowa,  and  is,  we  think  a  very  fit  and 
proper  one  to  be  made.'  Thus  far  no  office 
nor  the  name  of  the  man  to  fill  it  had  been 
mentioned,  Mr.  Harlan  and  those  with  him, 
supposing  that  the  President  knew  what  of- 
fice and  to  what  person  for  it  they  alluded. 
Mr.  Lincoln,  relieving  his  legs  from  their 
accustomed  twist,  turned  around  to  his 
table,  picked  up  his  pen,  and  drawing  a  pa- 
per to  him  as  if  to  make  the  appointment  in 
compliance  with  their  wishes,  said  to  them, 
'what  is  the  office,  and  whom  do  you  wish 
to  be  placed  in  it  ?'  Mr.  Harlan  replied  *  We 


12  SAMUEL  FKEEMAN  MILLER 

wish  to  have  Mr.  Miller  of  Iowa  chosen  by 
you  to  the  vacancy  on  the  Supreme  Bench. ' 
'Well,  well,'  replied  the  President,  replac- 
ing his  pen  and  pushing  back  his  paper, 
'that  is  a  very  important  position,  and  I 
will  have  to  give  it  serious  consideration.  I 
had  supposed  you  wanted  me  to  make  some 
one  a  Brigadier  General  for  you.'  "  The 
callers  left  with  no  assurance  as  to  their 


success.16 


Mr.  Miller  in  August,  1888,  wrote  a  let- 
ter to  Mrs.  Grimes,  widow  of  Senator  James 
W.  Grimes,17  in  which  he  gave  some  inter- 
esting particulars  concerning  his  appoint- 
ment. He  says:  "At  the  time  of  my  ap- 
pointment, there  were  then  in  Congress 
from  Iowa,  June,  1862,  Senators  Harlan18 
and  Grimes,  and  Mr.  Wilson,  now  in  the 
Senate,  but  then  in  the  House  of  Represen- 
tatives, and  the  only  member  of  the  House 
then  in  Washington.19 

"My  appointment  was  known  to  depend 
upon  such  an  arrangement  of  the  Judicial 
circuits  by  a  bill  then  pending  in  Congress, 
as  would  include  Iowa  in  a  circuit  entirely 
west  of  the  Mississippi  river.  To  this  end 
all  three  of  the  gentlemen  named  contributed 
their  best  efforts,  but  Mr.  Wilson,  being  on 


APPOINTMENT  TO  SUPREME  COURT  13 

the  Judiciary  committee  of  the  House,  to 
which  the  bill  was  referred,  was  especially 
efficient.  As  soon  as  the  bill  was  passed  as 
they  desired,  Mr.  Grimes  drew  up  in  his  own 
handwriting  a  recommendation  of  my  name 
for  one  of  the  two  places  then  vacant  on  the 
Bench  of  the  Supreme  Court,  to  be  laid  be- 
fore the  President.  This  he  signed,  and  as- 
sisted by  Mr.  Harlan,  the  other  Iowa  Sena- 
tor, procured  twenty-eight  (28)  of  the  thir- 
ty-two senators  then  in  Congress  to  sign  it 
also,  the  latter  number  (32)  being  all  that 
was  left  of  that  body  after  the  secession  of 
the  Confederate  senators.  Mr.  "Wilson  cir- 
culated a  similar  recommendation  in  the 
House  of  Representatives,  and  it  received 
the  signatures  of  over  one  hundred  and 
twenty  (120)  members,  which  was  probably 
three  fourths  of  those  in  attendance. 

"I  do  not  know  or  remember  who  pre- 
sented these  petitions  to  the  President,  but 
he  afterwards  said  in  my  presence  that  no 
such  recommendations  for  office  had  ever 
been  made  to  him."20 

The  recommendations  were  successful, 
and  President  Lincoln  almost  at  once  (July 
16, 1862,  at  9.  P.  M.)  sent  the  nomination  of 
Mr.  Miller  to  the  Senate,  by  which  it  was 


14  SAMUEL  FREEMAN  MILLER 

promptly  and  unanimously  confirmed.  His 
commission  dated  from  the  day  last  given 
and  he  took  his  seat  in  December  of  that 
year.  Mr.  Miller  was  the  first  Justice  of 
the  Supreme  Court  of  the  United  States 
ever  appointed  from  beyond  the  Mississippi, 
as  the  late  Col.  David  B.  Henderson,  of 
Iowa,  was  the  first  Speaker  of  the  House  of 
Representatives  from  the  western  side  of 
that  great  river.21 

It  is,  perhaps,  of  interest  to  recall  that 
President  Lincoln's  appointees  to  the  Su- 
preme Bench  were  five  in  number  and  all 
from  the  West:  Justices  Swayne,  Miller, 
Davis,  Field,  and  Chief  Justice  Chase.22 
President  Roosevelt's  two  appointments,  on 
the  other  hand,  have  gone  one  to  the  West 
(Justice  Day)  and  one  to  New  England 
(Justice  Holmes).23 

The  appointment  of  Justice  Miller  met 
with  high  favor,  as  was  natural,  in  the  com- 
munity where  he  was  best  known;  but  his 
name  seems  to  have  been  wholly  unrecog- 
nized by  the  eastern  press.  Thus  The 
Weekly  Gate  City,  a  newspaper  of  Keokuk 
(Justice  Miller's  home),  in  an  editorial  con- 
cerning the  appointment  published  July  23, 
1862,  said  of  him:  "He  is  the  model  the 


APPOINTMENT  TO  SUPREME  COURT  15 

beau  ideal  of  a  Western  Lawyer  and  a  Wes- 
tern Judge,  and  his  advent  to  the  Bench 
cannot  fail  to  create  a  sensation  even  in  that 
fossilized  circle  of  venerable  antiquities 
which  constitutes  the  Bench  of  the  Supreme 
Court  of  the  United  States."  On  the  other 
hand  the  New  York  Tribune  of  July  26  dis- 
cusses the  appointment  and  says  editorially : 
"Mr.  Miller's  name  is  printed  ' Samuel'  in 
the  dispatches,  but  we  presume  it  is  Daniel 
P.  Miller,  the  first  Whig  Member  of  Con- 
gress ever  chosen  from  Iowa."  And  it  says 
further  that  no  appointment  had  yet  been 
made  to  the  other  justiceship  vacant,  but 
mentions  "Daniel"  Davis,  of  Illinois,  as  a 
candidate,  undoubtedly  meaning  David  Da- 
vis who  later  received  the  appointment. 

The  circumstance  shows  how  unfamiliar 
each  name  was  in  the  East.  Yet,  from  the 
time  of  the  taking  his  seat  until  the  time  of 
his  death,  Justice  Miller  was  regarded,  not 
perhaps  as  the  most  enlightened,  certainly 
not  the  most  learned,  but,  it  is  believed,  as 
the  strongest  man  on  the  bench,  and  as  one 
who  united  integrity  with  conviction. 


Ill 

ASSOCIATE  JUSTICE  OF  THE  SUPKEME  COUKT 
OF  THE  UNITED  STATES 

JUSTICE  MILLER'S  preparation  for  Ms  great 
office  consisted  of  ten  years  of  practice  as  a 
country  doctor  and  twelve  years  as  a  coun- 
try lawyer.  It  seemed  most  inadequate,  and 
this  must  have  been  obvious  to  himself. 
However,  he  always  insisted  that  his  medi- 
cal studies  had  been  of  great  service  to  him 
in  preparing  him  by  the  pursuit  of  natural 
science  to  systematically  take  up  the  mas- 
tery of  law.24  He  seems  to  have  resolved  to 
overcome  this  lack,  and  so  with  remarkable 
industry  and  power  of  assimilation  he  now 
went  through  every  reported  case  decided 
by  the  Supreme  Court  of  the  United  States 
from  its  institution  until  he  took  his  seat, 
reading  and  re-reading  them  until  his  mind 
had  fully  appropriated  them.25 

In  the  case  of  Calais  Steamboat  Company 
v.  Van  Pelt's  administrator  (2  Black,  p. 
393),  we  find  his  first  printed  opinion — a 


SAMUEL   FREEMAN   MILLER 

FROM  A  PHOTOGRAPH  AS  REPRODUCED  IN 
THE  ''PROCEEDINGS  OF  THE  BENCH  AND 
BAR  OF  THE  SUPREME  COURT  OF  THE  UNITED 
STATES  IN  MEMORIAM  SAMUEL  F.  MILLER  " 


Ill 

OCIATE  JUSTICE  OF  THE  STJPKJ  RT 

OF  THE  UNITED  STATES 

JUSTICE  MILLER'S  preparation  for  Ms  great 
office  consisted  of  ten  years  of  practice  as  a 
country  doctor  and  twelve  years  as  a  coun- 
try lawyer.  It  seemed  most  inadequate,  and 
this  must  haHJrjJlk  ,AKMOT  ^^imself. 
However,  he  <, 

•      'OO'jaoflisa   8  A  HqAHOOTOHor  A   MOirj 
Cal  Studies  IWIF/    H0*aa    3HT  TO    apmasaooag"  HHT 

«I3Tlxn  3HT  '{O  TflUOO  aMaaiUH  3HT  ^O  HA8 

in  preparing"  Mifiik  .1  JHUMAB  MAtaoMaM  MI  85rr/T8 

science  to 

tery  of  law.24  He  seems  to  have  revived  to 
overcome  ;  markable 

industry  M  aow 

went  through  led 

by  the  Supreme  Court  of  the  United  States 
from  its  institution  until  he  took  his  seat, 
reading  and  re-reading  them  until  his  mind 
had  fully  appropriated  them.25 

In  the  case  of  Calais  Steamboat  Com^ 
v.  Van  Pelt's  administrator   (2  B! 
393),  we  find  his  first  printed  o  —a 


ASSOCIATE  JUSTICE  17 

brief,  positive  dissent,  covering  about  a 
quarter  of  a  page.  Chief  Justice  Fuller 
said  at  Justice  Miller's  death:  "His  style 
was  like  his  tread,  massive  but  vigorous. 
His  opinions  from  his  first  in  the  Second  of 
Black's  Reports,  to  his  last  in  the  One  hun- 
dred and  thirty-sixth  United  States,  some 
seven  hundred  in  number  (including  dis- 
sents), running  through  seventy  volumes, 
were  marked  by  strength  of  diction,  keen 
sense  of  justice,  and  undoubting  firmness 
of  conclusion."26 

Judge  Woolworth  said:  "His  first  opin- 
ion, in  the  Wabash  case  reported  in  2  Black, 
and  his  last  in  re  Burrus,  the  last  of  the 
judgments  of  the  last  term,  reported  on  the 
last  page  of  136  II.  S.,  not  only  bear  traces 
of  the  same  hand,  but  they  are  not  greatly 
unequal  in  accuracy  of  statement,  force  of 
reasoning,  and  that  felicity  of  judicial  style 
which  make  his  judgments  models  of  such 
compositions."27 

He  early  identified  himself  with  the  con- 
struction of  the  Constitution,  and  more  of- 
ten than  any  other  justice  he  was  assigned 
to  prepare  the  opinion  of  the  Court  in  con- 
stitutional cases.  He,  himself,  told  Hon. 
John  A.  Kasson  "that  he  had  given  during 


18  SAMUEL  FREEMAN  MILLER 

his  term  on  the  bench,  more  opinions  con- 
struing the  Constitution,  than  all  which  had 
previously  been  announced  by  the  court  dur- 
ing its  entire  existence."28 

There  were,  during  his  service,  far  more 
experienced  lawyers  and  more  eminent  le- 
gal scholars  upon  the  bench  (as  in  the  case 
of  Mr.  Chief  Justice  Taney  and  Mr.  Jus- 
tice Gray),  but  there  was  no  so  positive  a 
character.  He  had  no  doubts.  With  hon- 
est and  unfaltering,  and  it  may  be  added 
justified,  self-confidence  he  sought  to  solve 
the  many  profound  and  difficult  questions 
presented  by  the  circumstances  of  the  Re- 
bellion and  the  succeeding  Reconstruction. 

Lord  Mansfield  said,  as  became  a  great 
Judge :  "I  never  like  to  entangle  justice  in 
matters  of  form  and  to  turn  parties  round 
and  round  upon  frivolous  objections,  where 
I  can  avoid  it";29  and  Miller's  mind  was 
like  his  in  this  respect.  It  was  sometimes 
said  of  him,  as  the  Attorney  General  re- 
called at  his  death,  that  "he  was  wont  to 
sweep  away  the  law  in  order  that  justice 
might  prevail."30  He  was  often  impatient 
of  the  distinctions  made  by  the  law  when  he 
thought  them  artificial,  and  was,  for  in- 
stance, never  reconciled  to  the  legal  differ- 


ASSOCIATE  JUSTICE  19 

ences  between  real  and  personal  property. 
On  such  points  as  this,  his  learned  associate, 
Mr.  Justice  Gray,  used  to  lament,  perhaps 
unnecessarily,  that  a  mind  of  such  power 
and  aptitude  had  not  been  duly  grounded  in 
the  law. 

Hon.  Joseph  H.  Choate  said  of  Justice 
Miller  at  the  time  of  his  death:  "He  took 
his  place  upon  the  bench  at  a  time  when  one 
half  of  the  country  was  excluded  from  any 
participation  in  its  affairs,  and  he  sat  there 
during  the  whole  period  that  has  followed, 
until  at  last  it  would  appear  that  by  his  aid 
almost  every  question  of  irritation  and  di- 
vision that  could  possibly  arise  between  dif- 
ferent sections  and  interests  of  the  Ameri- 
can people  had  been  finally  set  at  rest."31 

Chief  Justice  Puller  admirably  said  of 
Miller:  "The  suspension  of  the  habeas  cor- 
pus; the  jurisdiction  of  military  tribunals; 
the  closing  of  the  ports  of  the  insurrection- 
ary States ;  the  legislation  to  uphold  the  two 
main  nerves,  iron  and  gold,  by  which  war 
moves  in  all  her  equipage;  the  restoration 
of  the  predominance  of  the  civil  over  the 
military  authority ;  the  reconstruction  meas- 
ures; the  amendments  to  the  Constitution, 
involving  the  consolidation  of  the  Union, 


20  SAMUEL  FREEMAN  MILLER 

with  the  preservation  of  the  just  and  equal 
rights  of  the  States — all  these  passed  in  va- 
rious phases  under  the  jurisdiction  of  the 
Court;  and  he  dealt  with  them  with  the 
hand  of  a  master."32 

Justice  Miller  made  often  but  slight  ref- 
erence to  preceding  decisions,  but  stated  his 
own  conclusions  clearly  and  with  an  accent 
almost  of  contempt  for  any  other  view. 
These  opinions  had  none  of  the  high  lucid 
persuasive  amenity  of  Marshall,  but  they 
were  direct,  vigorous,  positive,  and  withal 
honest. 

He  is  thought  to  have  held  the  line  very 
steadily  and  firmly  between  State  and  Fed- 
eral power  and  competency.  For  instance, 
he  held  that  a  United  States  Marshal  who 
levies  a  writ  of  attachment  upon  the  goods 
of  the  wrong  man  may  be  sued  for  the  tres- 
pass in  the  State  courts  and  there  made  to 
respond  in  damages;33  and  in  the  so-called 
Slaughter  House  Cases**  in  one  of  his  most 
famous  opinions,  he  held  that  the  State  of 
Louisiana  could  grant  to  a  corporation  the 
exclusive  privilege  of  maintaining  stock 
yards  and  slaughter  houses  in  a  region  in- 
cluding the  city  of  New  Orleans  and  nearly 
twelve  hundred  square  miles  of  territory, 


ASSOCIATE  JUSTICE  21 

and  could  close  all  other  such  yards  and 
houses  within  such  territory  and  forbid 
them  further  operation,  that  such  a  grant 
of  monopoly  violated  no  provision  of  the 
amended  Constitution  and  was  not  taking 
property  without  compensation  or  denying 
the  equal  protection  of  the  law,  but  was  a 
mere  police  regulation  over  which  the  State 
had  plenary  authority. 

In  the  very  last  opinion  written  by  Jus- 
tice Miller  in  the  Supreme  Court,35  he  held 
that  a  District  Court  of  the  United  States 
has  no  authority  in  law  to  issue  a  writ  of 
habeas  corpus  to  restore  an  infant  to  the 
custody  of  its  father,  when  unlawfully  de- 
tained by  its  grandparents,  holding  that  the 
"  custody  and  guardianship  by  the  parent  of 
his  child  does  not  arise  under  the  Constitu- 
tion, laws  or  treaties  of  the  United  States 
and  is  not  dependent  on  them  ....  that  the 
relations  of  father  and  child  are  not  mat- 
ters governed  by  the  laws  of  the  United 
States  and  that  the  writ  of  habeas  corpus 
is  not  to  be  used  by  the  judges  or  justices 
or  courts  of  the  United  States  except  in 
cases  where  it  is  appropriate  to  their  juris- 
diction/' 

On  the  other  hand,  he  denied  the  power  to 


22  SAMUEL  FREEMAN  MILLER 

the  State  to  authorize  a  municipality  to  con- 
tract debts  or  levy  taxes  for  other  than  a 
public  object,  and  therefore  held  city  bonds 
issued  to  aid  a  private  manufacturing  en- 
terprise, even  when  sanctioned  by  a  State 
statute,  void.36  In  this  case  he  used  the  fol- 
lowing language — perhaps  as  often  quoted 
as  any  of  his  utterances : 

"Of  all  the  powers  conferred  upon  gov- 
ernment that  of  taxation  is  most  liable  to 
abuse.  Given  a  purpose  or  object  for  which 
taxation  may  be  lawfully  used  and  the  ex- 
tent of  its  exercise  is  in  its  very  nature  un- 
limited. It  is  true  that  express  limitation 
on  the  amount  of  tax  to  be  levied  or  the 
things  to  be  taxed  may  be  imposed  by  con- 
stitution or  statute,  but  in  most  instances 
for  which  taxes  are  levied,  as  the  support 
of  government,  the  prosecution  of  war,  the 
National  defence,  any  limitation  is  unsafe. 
The  entire  resources  of  the  people  should  in 
some  instances  be  at  the  disposal  of  the  gov- 
ernment. 

"The  power  to  tax  is,  therefore,  the 
strongest,  the  most  pervading  of  all  the  pow- 
ers of  government,  reaching  directly  or  in- 
directly to  all  classes  of  the  people.  It  was 
said  by  Chief  Justice  Marshall,  in  the  case 


ASSOCIATE  JUSTICE  23 

of  McCulloch  v.  The  State  of  Maryland, 
that  the  power  to  tax  is  the  power  to  destroy. 
A  striking  instance  of  the  truth  of  the 
proposition  is  seen  in  the  fact  that  the  exist- 
ing tax  of  ten  per  cent,  imposed  by  the 
United  States  on  the  circulation  of  all  other 
banks  than  the  National  banks,  drove  out  of 
existence  every  State  bank  of  circulation 
within  a  year  or  two  after  its  passage.  This 
power  can  as  readily  be  employed  against 
one  class  of  individuals  and  in  favor  of  an- 
other, so  as  to  ruin  the  one  class  and  give 
unlimited  wealth  and  prosperity  to  the 
other,  if  there  is  no  implied  limitation  of 
the  uses  for  which  the  power  may  be  exer- 
cised. 

"To  lay  with  one  hand  the  power  of  the 
government  on  the  property  of  the  citizen, 
and  with  the  other  to  bestow  it  upon  favored 
individuals  to  aid  private  enterprise  and 
build  up  private  fortunes,  is  none  the  less 
a  robbery  because  it  is  done  under  the  forms 
of  law  and  is  called  taxation.  This  is  not 
legislation.  It  is  a  decree  under  legislative 
forms. 

"Nor  is  it  taxation.  A  'tax,'  says  Web- 
ster's Dictionary,  4s  a  rate  or  sum  of  money 
assessed  on  the  person  or  property  of  a  citi- 


24  SAMUEL  FREEMAN  MILLER 

zen  by  government  for  the  use  of  the  nation 
or  state. '  Taxes  are  burdens  or  charges  im- 
posed by  the  legislature  upon  persons  or 
property  to  raise  money  for  public  pur- 
poses." 

The  foregoing  passage  has  been  constantly 
referred  to  by  writers  and  speakers  in  favor 
of  free  trade  as  showing  the  inherent  injus- 
tice and  unconstitutional  tendency  of  a  pro- 
tective tariff. 

So  he  upheld  strongly  the  power  and  duty 
of  the  Federal  Executive  to  protect  the  Fed- 
eral judges  in  the  discharge  of  their  duty, 
and  wrote  an  opinion  holding  that  a  special 
deputy  marshal  might  be  assigned  to  at- 
tend a  Justice  where  there  was  just  reason 
to  believe  him  in  danger  while  executing  his 
office,  and  that  such  deputy  might  take  life 
if  necessary  in  defending  his  charge.  He 
held  further  that  the  act  of  such  deputy 
would  then  be  his  official  act  as  a  Federal 
officer  in  discharge  of  duty,  and  that  the 
Federal  courts  could  and  should  discharge 
him  on  habeas  corpus  from  the  custody  of  a 
State  court  wherein  he  was  held  in  a  crimi- 
nal prosecution  for  such  act.  This  was  in 
the  famous  case  of  In  Ee  Neagle?7  where 
such  deputy  in  protecting  the  venerable 


ASSOCIATE  JUSTICE  25 

Justice  Field  from  a  murderous  assault  by 
David  S.  Terry  shot  and  killed  the  latter. 

Justice  Miller's  views  which  were  first  ex- 
pressed as  dissenting  opinions  not  unfre- 
quently  were  ultimately  adopted  by  the 
Court  and  became  its  prevailing  decisions 
in  affairs  of  the  greatest  scope.  Thus,  in 
opposition  to  the  platitudinous  Chief  Jus- 
tice and  the  majority  of  the  justices,  Miller 
maintained,  in  Hepburn  v.  Griswold*8  the 
power  of  the  Federal  government  to  make 
its  paper  notes  legal  tender  for  the  discharge 
of  all  obligations  past  or  future,  support- 
ing himself  largely  by  the  opinions  of  Mar- 
shall. The  views  of  Miller,  as  is  well  known., 
prevailed  in  the  later  decisions,39  and  the 
earlier  case  was,  on  this  point,  overruled. 
He  is  believed  to  have  aided  in  shaping  the 
statutes  in  question40  and  to  have  frequently 
advised  the  various  administrations  in  legal 
matters. 

In  the  same  way  Miller  dissented  from 
the  doctrine  affirmed  by  the  majority,  in 
State  Tax  on  Railway  Gross  Receipts,41  that 
a  State  could  tax  the  gross  receipts  of  a 
railway  operating  an  interstate  business. 
He  said:  "I  lay  down  the  broad  proposi- 
tion that  by  no  device  or  evasion,  by  no  f  orm 


26  SAMUEL  FREEMAN  MILLER 

of  statutory  words,  can  a  state  compel  citi- 
zens of  other  states  to  pay  to  it  a  tax,  consti- 
tuting a  toll,  for  the  privilege  of  having 
their  goods  transported  through  that  state 
by  the  ordinary  channels  of  commerce." 
This  view  seems  sustained  by  the  later  de- 
cision of  Philadelphia  &  S.  Steamship  Com- 
pany v.  Pennsylvania,42  where  the  former 
decision  is  questioned  and  in  part  disap- 
proved. 

Mr.  William  A.  Maury,  in  an  article  upon 
Justice  Miller  contributed  to  The  Juridical 
Review  of  Edinburgh  (January,  1891), 
finds  in  Miller's  mind  a  "happy  union  of 
originality  and  conservatism,"  and  thinks 
that  his  opinion  in  the  Slaughter  House 
Cases,  and  in  Murdoch  v.  Memphis**  espe- 
cially exemplify  the  conservatism.  The 
question  involved  in  the  latter  case  was  the 
construction  to  be  given  to  the  act  of  Feb- 
ruary 5,  1861,  amending  the  Judiciary  Act 
of  1789.  It  was  contended  that,  under  the 
language  of  this  amendment,  the  Supreme 
Court  of  the  United  States,  when  reviewing 
the  proceedings  of  a  court  of  last  resort  in 
which  a  Federal  question  was  claimed  to  be 
involved,  should  consider  all  the  questions 
involved,  Federal  or  otherwise,  and  render 


ASSOCIATE  JUSTICE  27 

final  judgment  in  the  whole  case.  It  was 
also  urged  that  it  could  consider  only  the 
technical  record  of  the  State  court.  The 
majority  of  the  Court  held  (Miller  writing 
the  opinion)  that  the  Supreme  Court  might 
look  not  only  at  the  record  but  also  at  the 
opinion  of  the  State  court  to  determine  the 
questions  actually  decided;  that  it  was  es- 
sential to  the  jurisdiction  of  the  Federal 
Supreme  Court;  that  a  Federal  question 
was  raised  and  presented  to  the  State  court 
and  decided  by  it  against  the  plaintiff  in  er- 
ror ;  that  this  appearing,  the  decision  would 
be  examined  to  ascertain  whether  the  Fed- 
eral question  was  correctly  adjudicated,  if 
so,  judgment  would  be  affirmed,  if  not,  then, 
if  there  were  other  issues  broad  enough  to 
maintain  the  judgment  and  proper  for  de- 
termination by  the  State  court,  it  must  still 
be  affirmed  without  reviewing  the  soundness 
of  the  rulings  on  such  other  questions ;  and 
that  if  the  Federal  question  must  control 
the  whole  case,  then  the  Federal  Supreme 
Court  would  reverse  if  it  had  been  errone- 
ously decided  and  either  render  such  judg- 
ment as  the  State  court  ought  to  have  ren- 
dered or  send  the  case  back  to  that  court 
for  further  proceedings. 


28  SAMUEL  FREEMAN  MILLER 

Justices  Clifford,  Swayne,  and  Bradley, 
three  out  of  the  eight  Justices  participating, 
dissented.  Chief  Justice  Waite  took  no 
part,  as  the  case  was  argued  before  his  ap- 
pointment. The  effect  of  a  different  hold- 
ing would  have  been  to  almost  destroy  the 
independence  of  the  State  judiciary.  Even 
as  to  questions  in  no  way  involving  the 
"Constitution,  laws,  or  treaties  of  the  Uni- 
ted States"  wherever  a  Federal  question 
was  in  any  way  raised  in  connection  with 
matters  fit  for  State  cognizance,  the  Fed- 
eral review  of  the  whole  case  would  have 
been  possible. 

Justice  Miller,  throughout  the  critical  pe- 
riod of  his  service,  stood  like  a  rock  for  the 
powers  of  government  in  general ;  but  while 
determined  to  find  for  the  national  govern- 
ment all  that  was  necessary  for  its  adequate 
maintenance,  he  was  equally  resolved  that 
the  State  governments  should  not  be  de- 
stroyed or  unnecessarily  crippled.  In  other 
words  he  thoroughly  accepted  and  in  our 
court  of  last  resort  loyally  maintained  with 
unswerving  conviction  and  dominating  per- 
sonality our  constitutional  form  of  govern- 
ment ;  and  his  judicial  leadership  from  1862 
to  1890  was  of  paramount  importance  in 


ASSOCIATE  JUSTICE  29 

preserving  its  integrity.  A  war  the  most 
bloody  and  most  costly  of  modern  times  had 
been  fought  for  State  Rights.  They  had 
lost  in  the  trial  by  battle ;  and  the  most  just 
and  reasonable  claims  of  independence  on 
the  part  of  the  States  shared  the  odium  of 
those  which  led  to  the  contest.  The  ques- 
tions arising  went  of  necessity  to  the  Fed- 
eral Supreme  Court ;  and  there  Justice  Mil- 
ler, a  Southerner  who  had  left  the  South 
for  principle's  sake,  "a  mastiff-mouthed 
man",  to  use  Carlyle's  phrase,  held  the 
field  against  all  comers  for  the  doctrine  that 
the  Federal  government  should  be  main- 
tained in  vigor  and  efficiency,  but  that  the 
State  government  should  neither  perish  nor 
sink  into  insignificance.  His  was  an  ines- 
timable service  if  we  value  our  frame  of 
government. 

Marshall  wrote  the  opinion  in  Marbury 
v.  Madison,**  holding  that  executive  officers 
in  the  United  States  could  be  compelled  by 
mandamus  to  discharge  ministerial  duties 
which  they  were  bound  to  perform  and  as 
to  which  they  had  no  discretion.  Justice 
Miller  wrote  the  opinion  in  United  States 
v.  Schurzf*  applying  this  doctrine  to  the 
case  of  Hon.  Carl  Schurz,  Secretary  of  the 


30  SAMUEL  FREEMAN  MILLER 

Interior,  who  after  a  land  patent  had  been 
signed  by  the  President  and  recorded  in  the 
Register  of  Patents  made  an  order  that  it 
should  not  be  delivered.  The  proper  dis- 
trict court  was  authorized  to  issue  a  writ  to 
compel  Mr.  Schurz  to  deliver  this  patent, 
and  it  was  held  he  had  at  this  stage  no  pow- 
er over  the  title  and  no  right  to  retain  the 
patent.  Mr.  Schurz  had  acted  in  accord- 
ance with  precedent  which  was  thus  cor- 
rected. The  Chief  Justice  and  Justice 
Swayne  dissented.  In  a  supplemental  opin- 
ion, also  written  by  Justice  Miller,  it  was 
held  that  Mr.  Schurz  must  be  adjudged  to 
pay  the  costs  of  this  proceeding. 

In  Johnson  v.  Towsley46  and  United 
States  v.  Tlirockmorton*1  Justice  Miller 
wrote  the  opinions  upholding  the  conclu- 
siveness  of  the  action  of  the  land  officers  in 
issuing  patents,  but  scrupulously  preserv- 
ing to  those  injured  the  right  to  equitable 
relief  in  private  suits  on  the  ground  of 
fraud  or  deception  practised  upon  the  un- 
successful party.  These  judgments  were 
most  substantial  contributions  to  the  foun- 
dations of  land  titles,  which  in  much  of  the 
country  rest  wholly  upon  such  government 
patents. 


ASSOCIATE  JUSTICE  31 

As  an  example  of  Justice  Miller's  desire 
and  ability  to  do  away  with  technical  and 
artificial  rules,  one  may  cite  his  opinion  in 
Lovejoy  v.  Murray48  in  which  he  held  that 
the  recovery  of  a  judgment  against  one  of 
several  joint  and  several  trespassers  was  no 
bar  against  another  for  the  same  trespass, 
holding  "the  whole  theory  of  the  opposite 
view  is  based  upon  technical,  artificial  and 
unsatisfactory  reasoning";  and  again,  that 
while  the  principles  invoked  "may  well  be 
applied  in  the  case  of  a  second  suit  against 
the  same  trespasser,  we  do  not  perceive  its 
force  where  applied  to  a  suit  brought  for 
the  first  time  against  another  trespasser  in 
the  same  matter."  This  wholesome  decis- 
ion was  cited  to  the  English  court  of  Com- 
mon Pleas  inBrinsmead  v.  Harrison;49  but, 
though  referred  to  with  great  respect  by  the 
judges,  they  characteristically  adhered  to 
the  more  technical  English  view  and  de- 
clined to  follow  it. 

When  in  1877  the  serious  contest  arose 
between  Mr.  Hayes  and  Mr.  Tilden  as  to 
the  Presidency,  involving  controversy  as  to 
the  electoral  votes  of  Louisiana,  Florida, 
and  South  Carolina,  and  as  to  one  elector 
from  Oregon,  Congress  passed  a  bill  for  a 


32  SAMUEL  FREEMAN  MILLER 

presidential  electoral  commission  consisting 
of  five  Senators,  five  Representatives  and 
five  Justices  of  the  Federal  Supreme  Court: 
Pour  of  the  Justices  were  named  (by  their 
circuits)  in  the  act,  and  Justice  Miller  of 
the  Eighth  was  one  of  these ;  and  these  four 
chose  as  the  fifth,  Justice  Bradley.50 

From  the  first  Justice  Miller,  as  was  in- 
evitable from  the  type  of  his  mind,  took  an 
active  and  imperious  part  with  the  Repub- 
lican majority,  pressing  for  expedition  and 
exclusion  of  testimony  and  acting  through- 
out with  the  eight  commissioners  who  out- 
voted the  seven.  It  need  not  be  alluded  to 
as  a  judicial  service,  but  it  was  a  political 
service  for  which  his  undoubting  and  reso- 
lute disposition  especially  fitted  him. 


IV 

MISCELLANEOUS  WRITINGS  AND  ADDRESSES 

JUSTICE  MILLER  delivered  from  time  to 
time  addresses  before  bar  associations,  law 
schools,  universities,  and  various  public 
bodies  which  were,  of  course,  well  received. 
Both  his  office  and  his  ability  assured  that. 
Thus,  he  gave  the  address  before  the  New 
York  Bar  Association  in  187851  and  poured 
upon  our  jury  system  some  of  that  contempt 
which  a  distinctly  arbitrary  judge  is  apt 
to  feel  for  any  impediment  to  his  own  wilL 
"It  requires",  he  said,  "all  the  venera- 
tion which  age  inspires  for  this  model  of 
dispensing  justice  and  all  that  eminent  men 
have  said  of  its  value  in  practice,  to  prevent 
our  natural  reason  from  revolting  against 
the  system  and  especially  some  of  its  inci- 
dents. If  a  cultivated  oriental  were  told  for 
the  first  time  that  a  nation,  which  claims  to 
be  in  advance  of  all  others  in  its  love  of  jus- 
tice and  its  methods  of  enforcing  it>  required 
as  one  of  its  fundamental  principles  of  jur- 


34  SAMUEL  FREEMAN  MILLER 

isprudence,  that  every  controversy  between 
individuals,  and  every  charge  of  crime 
against  an  offender  should  be  submitted  to 
twelve  men  without  learning  in  the  law,  of- 
ten without  any  other  learning,  and  that 
neither  party  to  the  contest  could  prevail 
until  all  the  twelve  men  were  of  one  opinion 
in  his  favor,  he  would  certainly  be  amazed 
at  the  proposition."  The  writer  would  sug- 
gest that  we  may,  however,  bear  with  equa- 
nimity the  amazement  of  the  "cultivated 
oriental"  when  we  reflect  upon  the  "jus- 
tice" and  methods  of  enforcing  it  which  he 
has  evolved  and  been  content  to  cherish 
where  he  has  held  sway. 

In  1887  Justice  Miller  gave  an  address  be- 
fore the  Alumni  Association  of  the  Law  De- 
partment of  the  University  of  Michigan,  in 
which,  among  other  things,  he  discussed  the 
vast  results  of  the  Dartmouth  College 
Case.52  In  1888  he  gave  the  commencement 
address  before  The  State  University  of 
Iowa  on  The  Conflict  in  this  Country  be- 
tween Socialism  and  Organised  Society,  in 
which  he  showed  no  sympathy  for  socialism ; 
and  with  a  trite  conservatism  natural  to  his 
office  and  advanced  age  he  denounced  "the 
new  doctrines"  as  "utterly  inconsistent 


WRITINGS  AND  ADDRESSES  35 

with  the  good  old-fashioned  ideas  of  hon- 
esty."53 

The  same  year  Justice  Miller  gave  an  ad- 
dress of  permanent  value  before  the  Law 
Department  of  the  University  of  Pennsyl- 
vania, taking  for  his  theme  The  Use  and 
Value  of  Authorities  in  the  Argument  of 
Cases  before  the  Courts  and  in  the  Decision 
of  Cases  by  the  Courts?*  He  said  he  had 
selected  a  subject  which,  as  far  as  he  knew, 
had  "  escaped  the  attention  of  essayists  and 
book  makers  on  the  law. ' '  This  was  remark- 
able since  the  whole  field  of  law  had  been  ex- 
plored by  recent  writers  of  books,  "  mainly 
at  the  instance  of  law  publishers.  In  truth, 
nearly  all  the  later  works  of  that  class  have 
been  written  at  the  suggestion  of  the  book 
publisher  for  a  compensation,  and  not  be- 
cause the  writer  is  impressed  with  the  value 
or  importance  of  the  subject  that  he  writes 
about,  or  because  he  is  filled  with  the  knowl- 
edge and  the  inspiration  necessary  to  the 
production  of  such  a  work.  Most  of  these 
modern  treatises,  as  they  profess  to  call 
themselves,  are  but  digests  of  the  decisions 
of  the  courts,  and  though  professing  to  be 
classified  and  arranged  in  reference  to  cer- 
tain principles  discussed  in  the  book,  they 


36  SAMUEL  FEEEMAN  MILLER 

are  generally  but  ill-considered  extracts 
from  the  decisions  of  the  courts  on  the  sub- 
jects treated  of.  It  is  time  that  it  was  un- 
derstood that  this  field  of  literary  labor  has 
been  overworked,  and  that  the  public,  at 
least  the  professional  public,  is  tired  of  the 
endless  production  of  books  not  needed  and 
of  little  value." 

He  says  no  statutes  now  regulate  the  ex- 
tent to  which  authorities  are  to  be  relied 
upon,  though  some  States,  like  Virginia  and 
Kentucky,  forbade,  at  one  time,  by  acts  of 
the  legislature,  now  long  since  repealed,  a 
reference  in  court  to  cases  decided  before  4 
James  I. 

Admitting  that  Blackstone's  Commen- 
taries, Story's  Equity,  and  Greenleaf  on 
Evidence,  and  many  others  of  like  standing, 
may  be  considered  as  authorities,  he  limits 
himself  to  discussing  the  authority  of  ad- 
judged cases.  He  points  out  that  the  value 
of  a  case  as  an  authority  is  often  very  much 
enhanced  by  the  standing  of  the  judge  who 
delivered  the  opinion,  especially  if  "he 
stands  out  prominently  as  a  leading  man  of 
the  times  in  the  law."  "It  is  impossible", 
he  says,  "to  read  the  clearly  announced 
opinion  of  Marshall,  or  Kent,  or  Shaw,  or 


WRITINGS  AND  ADDRESSES  37 

Story,  of  this  country,  or  that  of  Mansfield, 
or  Hardwicke,  or  Lord  Stowell,  of  England, 
without  feeling  that  whatever  they  have  ful- 
ly considered  and  clearly  announced,  is  of 
immense  weight  and  of  persuasive  force 
upon  any  other  court  or  judge  in  making 
up  an  opinion. "  We  may  surmise  that  Jus- 
tice Miller  with  good  reason  thought  of  him- 
self in  this  class.  "He  would  be  a  bold 
man",  he  says,  "who  would  undertake  in  a 
court  of  the  United  States  to  controvert  a 
decision  or  a  proposition  of  law  laid  down 
by  Chief  Justice  Marshall  in  delivering  an 
opinion.  While  the  exigencies  of  politics, 
or  the  unconsidered  impulses  of  the  legisla- 
tive orator,  may  induce  him  to  question  the 
authority  of  the  great  expounder  of  the  Con- 
stitution, such  an  effort  would  be  wasted  in 
a  court  of  the  United  States." 

He  points  out  that  the  decisions  of  the 
three  Common  Law  Courts  of  England  are 
the  great  resort  in  disputed  questions  of 
Common  Law  to  which  we  look  for  rules  of 
property  and  personal  rights.  That  the  de- 
cisions of  the  High  Court  of  Admiralty, 
and  especially  those  of  Sir  Wm.  Scott,  af- 
terwards Lord  Stowell,  are  "a  mine  of  ex- 
isting authority  on  that  subject."  And 


38  SAMUEL  FREEMAN  MILLER 

above  all  the  decisions  of  the  High  Court  of 
Chancery  "must  always  be  looked  to  as  a 
fountain  of  light  on  controverted  questions 
of  equity  and  jurisprudence."  He  says 
that,  while  the  decisions  of  the  United  States 
Supreme  Court  are  conclusive  upon  all 
Federal  Courts,  they  are  not  necessarily  so 
in  the  State  courts,  except  as  to  Federal 
law ;  but  that  even  there  they  are  held  "more 
persuasive,  and  of  more  weight  than  the  de- 
cisions of  any  other  court  with  the  excep- 
tion of  that  of  the  highest  court  of  the  state 
in  which  the  matter  is  under  consideration." 

On  the  doctrine  of  stare  decisis  he  says : 
"All  courts,  however,  of  dignity  and  char- 
acter, have  a  due  regard  for  the  principle 
that  in  most  instances  it  is  better  that  the 
law  should  be  firmly  settled  than  that  it 
should  be  settled  with  entire  soundness.  It 
is  not  to  be  expected  that  such  court  will 
lightly  overrule  its  former  decisions,  and 
thus  subject  the  question  at  issue  to  perpet- 
ual controversy 

"Yet,  there  may  have  been  decisions  has- 
tily made  or  concurred  in  by  a  bare  major- 
ity of  a  court  of  many  members,  or  one 
which  some  resulting  experience  has  shown 
to  be  disastrous  in  its  operation,  which 


WRITINGS  AND  ADDRESSES  39 

should  be  overruled."  Perhaps  the  veteran 
Justice  was  revolving  the  many  occasions 
where  he  had  finally  forced  the  majority  to 
come  to  his  minority  opinion,  as  in  the  fa- 
mous Legal  Tender  Cases.  He  thinks  courts 
should  compel  counsel  to  manfully  admit 
the  hostility  of  a  decision  which  stands  in 
their  way,  to  say  that  they  are  not  seeking 
to  evade  it  or  juggle  with  the  court,  but  that 
they  desire  a  reconsideration  of  it. 

Decisions  from  States  where  there  are 
great  cities  and  extensive  commerce,  he  ob- 
serves, are  of  commanding  weight  in  com- 
mercial law;  that  the  courts  of  certain 
States  have  long  preserved  their  character 
for  ability,  care  and  labor,  and  have  on  this 
account  special  consideration,  and  as  such 
he  classes  the  courts  of  Massachusetts,  New 
York,  Pennsylvania,  and  South  Carolina 
in  her  best  days;  and  that  on  all  questions 
involving  the  Civil  Law  and  the  Code  Na- 
poleon the  decisions  of  the  Louisiana  courts 
have  always  been  accepted  as  of  high  au- 
thority by  all  other  courts  of  this  country. 

He  says,  furthermore,  that  counsel  in  cit- 
ing a  case,  unless  the  case  is  very  well 
known,  should  in  oral  argument  put  the 
court  in  possession  of  so  much  of  the  ele- 


40  SAMUEL  FREEMAN  MILLER 

ments  of  it  as  is  necessary  to  understand 
what  was  decided  in  it;  that  the  most  ef- 
fective counsel  will,  with  the  book  before 
them,  make,  in  their  own  language  and  not 
that  of  the  reporter,  a  condensed  statement 
of  the  issues  of  the  case  and  how  they  arose, 
and  then  read  from  the  report  of  the  opin- 
ion the  most  condensed  statement  he  can 
find  of  the  decision  of  the  court  and  of  the 
reasons  on  which  it  was  based.  That  this 
is  vastly  more  effective  than  reading  page 
after  page  which  the  court  can  not  remem- 
ber and  obscuring  what  is  pertinent  by 
much  which  is  not ;  that  a  few  cases  directly 
in  point,  and  well  presented,  decided  by 
courts  of  high  estimation,  are  far  more  valu- 
able than  innumerable  reference  to  cases  of 
remote  analogy ;  and  that  the  printed  argu- 
ment also  should  follow  the  above  sugges- 
tions, and,  after  giving  the  points  considered 
in  the  cases  cited,  should  then  "  give  one  or 
two  extracts  in  the  precise  terms  of  the 
opinion  of  the  court  as  to  the  point  under 
discussion.  It  will  be  so  apparent  to  the 
court,  when  an  authority  is  presented  in  that 
manner,  that  it  has  before  it  in  the  brief  of 
counsel  what  is  useful  to  be  considered,  that 
it  will  not  be  necessary  to  hunt  up  and  read 


WRITINGS  AND  ADDRESSES  41 

the  whole  case  to  be  sure  in  that  respect; 
and,  while  generally  the  court  should  not  de- 
cide a  case  upon  the  authority  of  a  previous 
decision  without  reading  it  carefully,  the 
judge  in  examining  the  case,  will,  in  many 
cases,  be  so  well  satisfied  that  a  correct  state- 
ment of  it  has  been  made  by  counsel  that  he 
need  look  no  further  for  his  own  satisfac- 
tion."55 

It  is  submitted  that  this  is  golden  advice 
to  the  practitioner  from  a  source  where  ex- 
perience and  ability  unite  to  give  weight 
and  value  to  the  views  expressed. 

Justice  Miller  contributed  to  Harper's 
Magazine  for  July,  1889,  an  article  on  The 
State  of  Iowa  in  which  the  critics  found  in- 
numerable small  errors  and  inaccuracies, 
but  which  abounds  in  loyal  feeling.  It  is  his 
tribute  to  the  State  which  he  regarded  as 
his  home  from  1850  until  his  death,  and  is, 
therefore,  more  fully  noticed  than  some 
other  publications.  He  begins  by  giving  the 
latitude  and  longitude  of  Iowa,  its  bounda- 
ries, area,  date  of  organization  as  a  Terri- 
tory and  as  a  State,  and  the  facts  of  the  ac- 
quisition of  the  region  by  the  United  States. 

He  discusses  the  origin  of  the  name  of 
Iowa  (which  he  says  is  derived  from  the 


42  SAMUEL  FREEMAN  MILLER 

name  of  an  Indian  tribe)  and  adds :  "  Wash- 
ington Irving,  with  the  license  allowable  to 
an  imaginative  writer,  states  that  the  mean- 
ing of  the  word  is  *  beautiful/  and  recounts 
the  incident  by  which  the  phrase  was  first 
applied  to  the  country,  saying  that  the  tribe 
who  in  their  wanderings  arrived  at  the  high- 
est point  in  the  Iowa  prairies,  looking  over 
the  vast  expanse  of  country  uninterrupted 
by  hills  or  swamps,  involuntarily  uttered  the 
word  'Iowa,'  meaning  '  beautiful.'  He 
says  that  probably  "  better  authority  for 
the  meaning  of  the  word  was  Mr.  Antoine 
LeClaire,  a  half-breed  of  the  'Sac'  and 
'Fox'  nations,  who  always  asserted,  humor- 
ously, that  he  was  the  first  white  man  born 
in  Iowa,  though  his  mother  was  an  Indian. 
He  was  employed  for  many  years  by  the 
United  States  as  an  interpreter  in  their 
dealings  with  the  various  Indian  tribes.  His 
definition  of  the  word  was,  'Here  is  the  spot 
—this  is  the  place — to  dwell  in  peace.'  It 
is  very  certain,  however,  that  the  name  of 
the  State  and  the  name  of  one  of  its  sec- 
ondary rivers,  running  through  a  large  part 
of  the  centre  of  the  state,  is  derived  from 
the  name  of  the  tribe."56 

He  shows  that  the  first  two  settlements  by 


WRITINGS  AND  ADDRESSES  43 

white  persons  in  this  region  were  by  Julien 
Dubuque,  a  Canadian,  who  got  permission 
from  the  Fox  Indians  about  1788  to  work 
lead  mines  at  the  point  where  the  city  of 
Dubuque  is  now  situated,  which  privilege 
was  confirmed  by  the  Spanish  Governor 
Carondelet,  and  that  Dubuque  spent  his  life 
in  mining  and  trading  at  that  point  until 
his  death  in  1810.  The  other  settlement  was 
about  fifteen  miles  north  from  the  southern 
border  of  the  State,  where  is  now  the  town 
of  Montrose,  at  which  point  Louis  Honore 
Tesson  established  a  trading  post.  The  set- 
tlements were  both  on  the  Mississippi,  both 
by  Frenchmen,  and  about  two  hundred  miles 
apart. 

The  Indians  (mainly  the  Sacs  and  Foxes) 
controlled  the  country  until  the  Black  Hawk 
War  of  1832,  resulting  in  a  treaty  by  which 
a  portion  of  Iowa  was  ceded  to  the  United 
States  by  the  Indians.57  Black  Hawk,  Chief 
of  the  Sac  and  Fox  tribes,  was  deposed  by 
our  government,  and  Keokuk,  a  lesser  Chief, 
was  made  principal  Chief.  For  him  was 
named  the  city  which  arose  on  the  site  of 
his  village,  and  this  city  was  the  later  home 
of  Justice  Miller  and  the  place  of  his  burial. 

Justice  Miller  discussed  the  agricultural 


44  SAMUEL  FREEMAN  MILLER 

resources  of  the  State,  its  growth  in  popu- 
lation, its  common  schools,  its  high  schools 
(casting  doubt  upon  the  validity  of  the  in- 
stitution of  the  latter),  all  in  the  simple 
strain  of  boastfulness,  without  apparent 
knowledge  of  what  had  been  achieved  else- 
where—which is  a  marked  attribute  of  all 
public  and  most  private  utterances  in  many 
prosperous  regions. 

He  does,  however,  indulge  the  critical 
spirit  as  to  one  department  of  education. 
"In  regard  to  the  other  class  of  educational 
institutions — colleges  and  universities, ' ' — 
he  says,  "Iowa  has  suffered  in  common  with 
nearly  all  the  Western  States,  and  perhaps 
some  of  the  Eastern  States,  by  the  efforts 
to  create  a  college  in  every  town  of  any  size, 
and  for  every  religious  denomination,  as 
well  as  the  college  and  university  established 
by  the  State.  There  is  no  more  unfortunate 
delusion  than  that  which  possesses  some 
men  who  desire  to  leave  their  property  at 
their  death  to  charitable  and  benevolent  in- 
stitutions than  to  devise  a  sum  for  the  crea- 
tion of  a  college,  the  amount  of  which  will 
barely  suffice  to  erect  the  first  building  nec- 
essary for  such  institutions,  leaving  the  sup- 
port of  the  professors,  the  establishment  of 


WRITINGS  AND  ADDRESSES  45 

scholarships,  the  purchase  of  laboratories, 
globes,  and  maps,  necessary  to  the  conduct- 
ing of  any  college,  to  chance  or  to  solicita- 
tion, or  to  any  means  which  may  be  sup- 
posed to  supply  these  necessities  of  college 
instruction. 

"In  addition  to  colleges  thus  projected, 
almost  every  Christian  denomination  in  the 
State  of  Iowa  has  attempted  to  establish 
one  of  its  own.  And  the  Methodists,  the 
early  pioneers  of  civilization  and  religion, 
possessing  the  largest  membership  of  any 
Christian  Church  in  the  State,  have  thought 
it  necessary  to  attempt  the  establishment  of 
a  college  for  each  of  its  four  Conferences. 
The  result  of  this  has  been,  in  the  State  of 
Iowa,  that  the  efforts  of  the  friends  of  lib- 
eral education  have  been  divided  and  para- 
lyzed. The  colleges  are  unable  to  give  sala- 
ries sufficient  to  command  the  services  of 
competent  professors;  none  of  them  have 
the  philosophical  apparatus  which  should 
be  provided,  all  of  them  are  struggling  in- 
efficiently, with  one  or  two  exceptions." 

"  'Iowa  State  University,'  at  Iowa  City," 
he  says,  "has  not  been  without  reasonable 
endowments  by  the  proceeds  of  lands  given 
by  the  Federal  government  and  by  some 


46  SAMUEL  FREEMAN  MILLER 

contributions  from  the  State  treasury,  but 
has  not  been  very  fortunate  in  the  manner 
in  which  it  has  been  conducted  by  the  trus- 
tees appointed  by  the  State. 

"It  is  now,  however,  placed  upon  a  foot- 
ing which  promises  success  and  with  a  new 
and  efficient  president  (Sehaeffer)  and  with 
the  confidence  of  the  public,  with  an  efficient 
medical  department  and  a  still  more  suc- 
cessful law  department,  it  may  be  said  to  be 
fairly  deserving  the  name  of  l University.'  " 

He  discusses  some  of  the  public  men  of 
Iowa.  Of  General  Belknap,  his  townsman 
and  former  Secretary  of  War,  he  says:  "It 
is  true  that  in  the  House  of  Eepresentatives, 
articles  of  impeachment  were  preferred 
against  him,  charging  him  with  improper 
conduct  in  the  disposal  of  a  sutlership  or 
post-tradership  in  the  army.  He  was,  how- 
ever, acquitted  on  trial  before  the  Senate, 
and  has  ever  since  retained  the  undimin- 
ished  confidence  of  those  who  knew  him  well 
and  were  best  qualified  to  judge  of  his  char- 
acter." 

It  is  curious  that  the  life  of  General  Bel- 
knap,  his  fellow  townsman  at  Keokuk,  came 
to  its  close  in  Washington  on  the  same  night 
on  which  Justice  Miller  died,  and  these 


WRITINGS  AND  ADDRESSES  47 

words  of  vigorous  defense  take  on  new  in- 
terest as  we  remark  that  the  old  friends  and 
neighbors  were  not  divided  in  death. 

Dealing  with  the  inadequacy  of  public 
salaries,  which  he  bitterly  felt  in  his  own 
case,  he  shows  that  Hon.  Geo.  W.  McCrary, 
of  Iowa,  was  Secretary  of  War  under  Presi- 
dent Hayes,  was  appointed  thence  Circuit 
Judge  of  the  United  States,  but  after  strug- 
gling with  comparative  poverty,  having  a 
large  family,  was  compelled  to  resign  to  ac- 
cept ten  thousand  dollars  per  annum  as  at- 
torney and  counsellor  for  a  western  rail- 
way.58 "It  is  thus",  he  says,  "that  by  a 
niggardly  policy  and  insufficient  salaries, 
the  best  offices  of  the  country,  especially  its 
judicial  offices,  are  abandoned  for  the  pur- 
suits of  private  life."  Justice  Miller  cites, 
also,  the  case  of  John  F.  Dillon,  of  Iowa,  as 
illustrating  the  same  doctrine,  saying  that 
he  resigned  the  same  United  States  Circuit 
Judgeship  "in  the  height  of  his  usefulness 
and  of  his  reputation  as  a  great  judge,  and 
accepted  the  place  of  professor  in  the  Co- 
lumbia College  law  school  in  New  York,  and 
of  counsel  and  attorney  for  the  Union  Pa- 
cific Eailway  Company,  in  which  two  places 
alone  his  compensation  was  three  times  as 


48  SAMUEL  FREEMAN  MILLER 

large  as  that  which  he  received  from  the 
government  of  the  United  States  as  Circuit 
Judge."59 

At  the  celebration  of  the  Centennial  of 
the  Constitution  in  Philadelphia,  Septem- 
ber 17,  1887,  Justice  Miller  was  the  orator 
and  spoke  with  reverent  affection  of  the  in- 
strument he  had  so  often  been  called  upon 
to  construe.60  The  Annapolis  Convention  of 
1786  suggested  a  convention  of  delegates 
from  all  States  "to  devise  such  further  pro- 
visions as  might  appear  to  be  necessary  to 
render  the  constitution  of  the  federal  gov- 
ernment adequate  to  the  exigencies  of  the 
union."  The  Constitution  which  that  later 
convention  drafted  was  always  construed 
by  Marshall  and  by  Miller  (upon  whom  the 
mantle  of  the  former  fell)  in  the  spirit  of 
that  first  suggestion  to  make  it  "adequate 
to  the  exigencies  of  the  union." 

With  accustomed  constancy  he  expresses 
in  this  address  his  dominant  ideas  in  sup- 
port of  a  strong  Federal  government,  yet 
with  due  regard  for  the  rights  of  the  States. 
He  says:  "If  experience  can  teach  anything 
on  the  subject  of  theories  of  government, 
the  late  civil  war  teaches  unmistakably  that 
those  who  believe  the  source  of  danger  to  be 


WRITINGS  AND  ADDRESSES  49 

in  the  strong  powers  of  the  Federal  govern- 
ment were  in  error,  and  that  those  who  be- 
lieved that  such  powers  were  necessary  to 
its  safe  conduct  and  continued  existence 
were  right. ' '  Again,  he  said :  "  In  my  opin- 
ion the  just  and  equal  observance  of  the 
rights  of  the  States,  and  of  the  general  gov- 
ernment, as  defined  by  the  present  Consti- 
tution, is  as  necessary  to  the  permanent 
prosperity  of  our  country  and  to  its  exist- 
ence for  another  century,  as  it  has  been  for 
the  one  whose  close  we  are  now  celebrating." 

This  address  is  not  eloquent,  although  it 
was  a  theme  to  excite  eloquence.  It  is  not 
informed  by  warmth  of  feeling,  although  it 
was  given  at  a  time  and  a  place  to  lift  up 
men's  hearts;  but  it  displayed  Miller's 
strong  grasp  of  essential  facts  and  eluci- 
dates the  whole  history  of  the  Constitution 
so  that  its  absolute  necessity  when  it  was 
adopted  and  its  wonderful  adequacy  in  a 
hundred  years  of  trial  are  plain  even  to  the 
casual  reader. 

This  with  the  Michigan  address  and  the 
manuscript  of  ten  lectures  on  the  Constitu- 
tion of  the  United  States,  read  by  Justice 
Miller  before  the  Law  School  of  the  Nation- 
al University  at  Washington,  were  pub- 


50  SAMUEL  FREEMAN  MILLER 

lished  in  1891,  after  their  author's  death, 
under  the  title  of  Miller  on  the  Constitution 
of  the  United  States.61  This  work  has  those 
merits  of  clearness  and  positiveness  which 
marked  all  his  utterances,  but  has  met  with 
little  recognition  or  success.  Most  lawyers 
do  not  know  of  its  existence.  Blackstone 
and  Kent  are  more  distinguished  for  their 
commentaries  than  for  their  judicial  opin- 
ions; but  the  opposite  is  true  of  Miller. 

When  we  consider  the  severity  of  his 
judgment  on  most  legal  treatises,  the  ob- 
scure fate  of  his  posthumous  volume  is  af- 
fecting and  instructive.  Officials,  even  those 
who  do  their  public  work  well,  if  they  wish 
to  scorn  the  scholar  and  publicist,  should 
seldom  attempt  to  compete  with  him. 


JUSTICE  MILI  ^TARACTERIZAT 


BESIDE   the    ordim 
husband  and  father  '• 

Idren,  Jus 
>ver  an 


. 
affection  to  a  venera 

•  **0  0       83UaAHO 

her 


<lness,  wh 

>  wife 
watched 

unf  ailiBg 

>  attained 


J10    VIA 


^/wOI   8SXIOM  8«a      . 

twenty-five  years  was 
home  to  a  nephew  while  o? 
fessional  education.    The  ^ 
ted  to  extract  the  following  f 
mblished  letter  of  Justi 
hew,    dated    Washington 


, 

last 

,  A  WOT  «n 

?&ve  a 

.%  his  pro- 

; permit- 

om a  private 

;er  to  this 

er    17, 


It  has  been  one  of  my  wkhflc  for  several  years  past 


that  when  you  and  X 
from  Cornell  I  could 

r  the  govem»e«l 
nad  attend  one  of  th« 

>u  were  prepared 


otiid  have  graduated 
sv-  to  get  some  places 
nni  could  study  law 

us**!  law  schools  here  un- 

e^iu  the  practice. 


I  have  a  place  in  tite  patent  office  promised  for 
-  to  begin  next  month  and  I  look  for  him 


SAMUEL   FREEMAN   MILLER 


FROM  AN  OIL  PAINTING  BY  CHARLES  NOEL  FLAGG 
IN  THE  POSSESSION  OF  THE  HISTORICAL  DEPARTMENT 
OF  IOWA  .  .DBS  MOINES  IOWA 


JUSTICE  MILLER — A  CHARACTERIZATION" 

BESIDE  the  ordinary  kindness,  which  as 
husband  and  father  he  evidenced  to  wife  and 
children,  Justice  Miller  lovingly  watched 
over  an  invalid  sister ;  he  showed  unfailing 
affection  to  a  venerable  mother  who  attained 
her  eighty-third  year  and  who  for  the  last 
twenty-five  years  was  blind;62  he  gave  a 
home  to  a  nephew  while  obtaining  his  pro- 
fessional education.  The  writer  is  permit- 
ted to  extract  the  following  from  a  private 
unpublished  letter  of  Justice  Miller  to  this 
nephew,  dated  Washington,  October  17, 
1881: 

It  has  been  one  of  my  wishes  for  several  years  past 

that  when  you  and  X should  have  graduated 

from  Cornell  I  could  see  my  way  to  get  some  places 
under  the  government  where  you  could  study  law 
and  attend  one  of  the  very  good  law  schools  here  un- 
til you  were  prepared  to  begin  the  practice. 

I  have  a  place  in  the  patent  office  promised  for 
X to  begin  next  month  and  I  look  for  him 


52  SAMUEL  FREEMAN  MILLER 

home  now  every  day.  While  looking  out  for  X , 

Col.  told  me  he  thought  by  some  changes  in 

his  office  of  U.  District  Attorney  he  could  give  X 

a  clerkship  at  $600  or  $700  per  year.  When  I  had 

secured  X the  place  in  the  Patent  Office  at 

$900  per  year  I  asked  Col. to  let  you  have  the 

clerkship  in  his  office.  He  readily  agreed  to  this,  but 
in  completing  his  final  arrangements  with  the  assist- 
ant which  he  must  have  and  with  the  money  the  law 
allows  him,  he  finds  he  has  but  $500  per  annum  to 
give  a  clerk.  This  he  authorizes  me  to  offer  you, 
counting  it  from  the  first  day  of  this  month.  Of 
course  if  you  had  to  pay  board  this  would  do  you  no 
good.  But  with  your  Aunt's  approval  and  with  my 
own  free  wishes  and  earnest  desire  I  offer  you  a  home 
in  my  house  for  the  next  two  years  and  we  all  hope 
you  will  find  it  to  suit  you  to  accept  it. 

It  is  possible  that  after  you  come  we  may  get  you 
some  more  remunerative  place  than  this  one  Col. 

offers.  I  think  this  could  be  done  easily  if 

your  politics  had  been  of  the  right  sort,  or  if  you  had 
been  simply  neutral.  I  do  not  mention  this  with  any 
view  to  a  change  for  I  know  you  too  well  to  believe 
you  would  do  so,  nor  would  I  wish  to  see  you  do  it 
for  the  sake  of  an  office.  I  mention  it  as  a  reason 
why  I  can  not  so  easily  do  for  you  what  I  have  done 
for  X .  With  Col. ,  who  has  the  appoint- 
ment of  his  own  clerks,  your  politics  is  a  matter  of 
no  consequence. 

What  is  here  offered  is  not  much,  but  as  something 
better  may  come,  and  as  it  will  familiarize  you  with 
the  details  of  a  large  practice  and  enable  you  to  grad- 
uate at  a  good  law  school,  I  have  thought  it  might 


A  CHARACTERIZATION  53 

be  worth  your  consideration.    Lida  is  at  home.    The 
house  is  filled  with  carpenters,  plumbers,  etc.,  etc. 

All  send  love  to  your  mother  and  to  the  family  and 
are  anxious  that  you  should  find  it  to  your  interest 
to  come  and  live  with  us. 

Affectionately  your  uncle, 

SAM.  F.  MILLER. 

Justice  Miller  seems  to  have  excited  and 
returned  a  warm  affection  in  Ms  relations  to 
his  brother  Justices.  It  was  feared  that  on 
his  appointment  he  might  collide  with  the 
venerable  Chief  Justice  Taney;  but  on  the 
other  hand,  a  rare  and  tender  regard  sprang 
up  between  these  men  so  opposite  in  their 
views.  At  the  end  of  their  first  year  of  serv- 
ice together,  as  the  Judges  separated  to  at- 
tend their  circuits,  the  aged  Chief  took  his 
young  associate  by  the  hand  and  said:  "My 
brother  Miller,  I  am  an  old  and  broken  man. 
I  may  not  be  here  when  you  return.  I  can- 
not let  you  go  without  expressing  to  you  my 
great  gratification  that  you  have  come 
among  us.  At  the  beginning  of  the  term,  I 
feared  that  the  unhappy  condition  of  the 
country  would  cause  collisions  among  us. 
On  the  other  hand,  this  has  proved  one  of 
the  pleasantest  terms  I  have  ever  attended. 
I  owe  it  greatly  to  your  courtesy.  Your 


54  SAMUEL  FREEMAN  MILLER 

learning,  zeal,  and  powers  of  mind  assure 
me  that  you  will  maintain  and  advance  the 
high  traditions  of  the  Court.  I  predict  for 
you  a  career  of  great  usefulness  and 
honor."63 

Mr.  Henry  E.  Davis  has  preserved  a 
statement  of  Judge  Miller  as  to  the  Chief 
Justice,  which  is  a  most  interesting  supple- 
ment to  this.  "He  once  said  to  me",  says 
Mr.  Davis,  "  'when  I  came  to  Washington, 
I  had  never  looked  upon  the  face  of  Judge 
Taney,  but  I  knew  of  him.  I  remembered 
that  he  had  attempted  to  throttle  the  bank 
of  the  United  States,  and  I  hated  him  for  it. 
I  remembered  that  he  took  his  seat  upon  the 
Bench,  as  I  believed,  in  reward  for  what  he 
had  done  in  that  connection,  and  I  hated 
him  for  that.  He  had  been  the  chief  spokes- 
man of  the  court  in  the  Dred  Scott  case,  and 
I  hated  him  for  that.  But  from  my  first 
acquaintance  with  him,  I  realized  that  these 
feelings  toward  him  were  but  the  sugges- 
tions of  the  worst  elements  of  our  nature; 
for  before  the  first  term  of  my  service  in  the 
Court  had  passed,  I  more  than  liked  him ;  I 
loved  him.  And  after  all  that  has  been  said 
of  that  great,  good  man,  I  stand  always 


A  CHARACTERIZATION  55 

ready  to  say  that  conscience  was  Ms  guide, 
and  sense  of  duty  Ms  principle.'  "64 

CMef  Justice  Chase  declared  that  "  be- 
yond question,  the  dominant  personality 
now  upon  the  bench,  whose  mental  force 
and  individuality  are  felt  by  the  court  more 
than  any  other  is  Justice  Miller,  who  is,  by 
nature,  by  intellectual  constitution,  a  great 
jurist."65  And  a  leading  law  journal  spoke 
of  his  death  as  removing  "the  most  con- 
spicuous legal  figure  in  the  United  States."66 

Twice  Miller  was  pressed  for  the  Chief 
Justiceship— upon  the  death  of  Taney  and 
of  Chase.  Judge  Williams  has  recorded  his 
interview  with  President  Grant  on  the  lat- 
ter occasion  during  a  memorable  ride  at 
Long  Branch.  "I  told  him",  he  says,  "I 
was  in  favor  of  the  appointment  of  Justice 
Miller  for  reasons  then  apparent  to  me, 
which  need  not  here  be  repeated,  for  his 
judicial  career  has  made  them  known  to  all 
the  people  of  this  country.  The  President 
replied  that  he  had  reflected  not  a  little  up- 
on the  subject,  and  had  decided  not  to  make 
an  appointment  from  the  Bench.  He  ex- 
pressed the  highest  admiration  for  Justice 
Miller,  but  said  in  substance  that  Justice 
Swayne  was  a  judge  of  great  experience  and 


56  SAMUEL  FREEMAN  MILLER 

abilities,  and  the  senior  of  Justice  Miller  up- 
on the  Bench,  and  he  could  give  no  good 
reason  for  subordinating  his  claims  to  those 
of  Justice  Miller.  He  spoke  in  high  terms 
of  Justices  Strong  and  Bradley,  and  de- 
clared he  was  quite  unable  and  altogether 
unwilling  to  decide  which  one  of  these  dis- 
tinguished jurists  was  entitled  to  the  prefer- 
ence. He  also  expressed  doubts  as  to  the 
expediency  of  promoting  a  Justice  to  the 
Chief  Justiceship;  'for,'  said  he,  'if  that 
policy  is  adopted  when  the  Chief  dies  his 
associates  will  become  rival  candidates  for 
the  place,  and  thus  feeling  might  be  engen- 
dered that  would  disturb  the  harmony  and 
affect  unfavorably  the  efficiency  of  the 
Court.'  He  gave  as  another  reason  for  his 
decision,  that  there  was  no  precedent  for 
promoting  an  Associate  Justice  to  the  head 
of  the  Court,  and  he  was  not  disposed  to  in- 
novate upon  what  he  considered  a  salutary 
practice,  and  so  with  these  kind  and  gentle 
words  were  nipped  as  with  a  killing  frost 
the  budding  hopes  of  more  than  one  aspir- 
ant for  the  Chief  Justiceship  of  the  United 
States."67 

It  is  said  that  on  the  death  of  Chief  Jus- 
tice Waite,  President  Cleveland  for  some 


A  CHARACTERIZATION  57 

days  hesitated  between  Miller  and  Carlisle 
as  Ms  successor,  but  was  ultimately  con- 
trolled by  the  same  reasons  that  prevailed 
with  President  Grant  when  Waite  was  ap- 
pointed.68 

Justice  Miller  might  have  retired  from 
the  bench  with  his  full  salary,  some  years 
before  his  death;  but  he  retained  his 
strength  to  almost  the  last,  enjoyed  his 
work,  and  scouted  the  idea  of  retirement.69 

In  the  last  summer  of  his  life,  when  sev- 
enty-five years  of  age,  he  declared  in  a  char- 
acteristic utterance:  "I  have  never  been 
more  capable  of  work  than  I  am  now.  I 
cannot  be  idle,  I  must  do  something,  and 
there  is  nothing  I  can  do  or  like  to  do  so 
well  as  the  work  which  my  office  devolves 
upon  me.  Why  then,  should  I  retire."70 

On  the  19th  of  May,  Judge  Miller  read 
from  the  Bench  in  Washington  his  last 
opinion,  and  the  Court  adjourned  for  the 
term.  He  went  his  circuit ;  and  in  a  visit  to 
Colorado,  was  inconvenienced  by  the  cli- 
mate, which  was  not  congenial  to  him.  His 
wife's  illness,  however,  detained  him  there.71 

On  October  2,  1890,  at  St.  Louis,  he  sat 
upon  the  bench  for  the  last  time.72  He 
went  back  to  Washington  with  strength 


58  SAMUEL  FREEMAN  MILLER 

abated  rather  than  recruited  by  the  sum- 
mer's respite,  and  visited  the  rooms  of  the 
Court.  As  he  returned,  when  in  sight  of  his 
home,  he  was  stricken  down  with  apoplexy. 
After  some  hours  of  failing  consciousness, 
the  end  came.73  He  died  at  his  home,  Octo- 
ber 13,  at  near  eleven  o'clock  at  night.  The 
funeral  services  were  held  in  the  Supreme 
Court  room,  October  16.  The  chair  at  the 
right  of  the  Chief  Justice  was  vacant, 
draped  in  black.  There  were  no  other 
mourning  decorations. 

They  laid  on  the  coffin  among  the  flowers 
a  wreath  of  autumnal  oak  leaves — a  fit  sym- 
bol. They  sang  that  hymn,  dear  to  stricken 
hearts,  Abide  with  Me,  Fast  Falls  the  Even- 
tide. Rev.  Dr.  Shippen  conducted  the  Uni- 
tarian services.  Rev.  Dr.  Bartlett,  of  the 
Presbyterian  Church,  exhibited  the  custom- 
ary banalities  of  funeral  addresses,  char- 
acterizing him  as  "  A  great  American  man," 
and  comparing  him  in  fecundity  to  the  Mis- 
sissippi Valley.  As  night  fell  the  western 
bound  train  bore  his  body  with  a  little  group 
of  mourners  and  Chief  Justice  Fuller  and 
Justice  Brewer,  representing  the  Court,  to- 
ward his  old  home,  Keokuk.74 

For  three  years  Justice  Miller  had  served 


A  CHARACTERIZATION  59 

as  the  President  of  the  National  Unitarian 
Conference.  He  was  one  of  the  founders  of 
the  Unitarian  Church  at  Keokuk  and  he 
drew  up  its  articles  of  incorporation  in 
1853;  and  there  where  he  had  retained  his 
membership  the  last  funeral  ceremonies 
were  held  at  the  time  of  his  burial. 

Although  so  long  the  senior  Associate 
Justice  and  so  predominant  in  the  consulta- 
tion room,  Miller  never  forgot  while  on  the 
Supreme  Bench  that  he  was  not  the  Chief 
Justice.  His  interruptions  of  counsel  were 
fewer  than  those  of  his  weaker  associates, 
but  they  were  apt  to  be  pertinent  and  some- 
times disastrous  to  the  speaker,  carrying 
the  assurance  that  the  Court  "was  not  with 
him  and  never  would  be."75 

Justice  Miller's  sternness,  his  desire  to 
dispatch  business  and  the  scant  ceremony 
with  which  he  dealt  with  tediousness  or  de- 
lay left  many  wounds  among  the  bar  of  his 
circuit.  He  was  apparently  unaware  of 
these  traits,  and  he  certainly  gave  to  and  re- 
ceived from  kindred  and  friends  a  warm 
and  enduring  affection.  In  his  address  be- 
fore the  New  York  Bar  in  1878,  he  said: 
"A  vile  and  overbearing  temper  becomes 
sometimes  in  one  long  accustomed  to  the  ex- 


60  SAMUEL  FREEMAN  MILLER 

ercise  of  power  unendurable  to  those  who 
are  subject  to  its  humors,"  and  he  suggested 
that  it  be  made  cause  for  removal.76 

The  writer  owes  to  a  gifted  Chief  Justice 
this  illustrative  anecdote.  A  young  lawyer 
had  submitted  a  motion  to  Justice  Miller 
at  the  circuit  and  met  the  usual  humiliating 
treatment.  As  he  turned  back  he  met  a  fel- 
low member  going  up  in  turn  for  a  like  pur- 
pose and  they  condoled  together.  "Well, 
what  are  you  going  to  do?"  said  the  first. 
"Oh",  answered  the  other,  "I'm  going  up 
to  be  stamped  all  over  by  that  damned  old 
Hippopotamus. ' ' 

Yet  Senator  C.  K.  Davis,  after  speaking 
of  his  "rugged  and  frosty,  sometimes,  yet 
always  kindly  manner,"  says:  "I  was  al- 
ways more  pleased  to  see  him  in  the  admin- 
istration of  justice  in  trying  jury  cases  than 
in  any  other  aspect  in  which  I  viewed  the 
man.  His  patience  with  the  jury ;  his  blunt, 
plain  manner  in  which  he  led  and  instruct- 
ed them ;  the  appropriate  humor  with  which 
he  sometimes  enlivened  the  tedious  details 
of  the  trial,  and  his  occasional  reproof  of 
counsel  or  witnesses,  will  long  be  remem- 
bered."77 And  Mr.  Garland  said  that  when 
Justice  Miller  first  held  court  at  Little  Eock 


A  CHA  BIZATION  61 

"the  means  sometimes  that  he  used  to  dis- 
cipline us  in  these  new  ways  were  not  en- 
tirely agreeable  to  us  at  •  and  to 
some  exter;  inched  un<  ection- 
ate  chastiaaoMat,  but  when  he  .'-atle 
Eock,  at  the  el«w  of  that  term,  ther3  Was 
not  a  menV  n>af  Bar  wL  :'  v 
teem  and  adri  ,  and  he  has  he  •'.  V 
unbroken  .  •  since  ';';  !;;J 
He  was  a  large  mfcn,  six  feet  in  heigiit  an^ 
weighing  ovei  bttadred  pounc  .  ^ :  - 

feature^M ,^jm  8TT3a$4Jj&,.  ^T  '- 
Roman  profile  and  ef  cap  wT  •  •" 

jiisa  KHT  ya  H^Aaoo^onq  A  MOJTS 

wore  on  the  bwa«r^wAT  ,c#?alfct«&T5iaars,  made 
him  a  noticeable  ihere.79  He  gei 

ally  walked  to  and  f  ^  Court,  and  only 

used  a  carriage  on  spe^a!  occasions.80  The 
newspapers  at  his  death  said  that  he  was 
worth  "$100,000  or  so  *'  but  unfortunately 
they  were  mistak 

A  writer  in  Ear  kly  at  the  time 

of  his  death  (On  -«90)  says:  "Per- 

sonally, Justi<  \Tas  a  hearty,  genial, 

democratic  mar;  ^  was  laborious. 

He  loved  his  pmfanrton  and  his  work.  He 
was  usually  in  }$»  office  in  the  basement  of 
his  house  on  Mitatwhti&etts  Avenue,  at  work 
on  the  opinions  which  fell  to  his  lot  to  i 


JLA 


.'THHE   MASSACHUSETTS   AVENUE    HOME 

FEOM  A  PHOTOGRAPH  BY  THK   BELL 
PHOTOGRAPHIC    CO.   TAKEN    IN    1907 


A  CHARACTERIZATION  61 

"the  means  sometimes  that  he  used  to  dis- 
cipline us  in  these  new  ways  were  not  en- 
tirely agreeable  to  us  at  the  time,  and  to 
some  extent  we  flinched  under  his  affection- 
ate chastisement,  but  when  he  left  Little 
Rock,  at  the  close  of  that  term,  there  was 
not  a  member  of  that  Bar  who  did  not  es- 
teem and  admire  him,  and  he  has  had  their 
unbroken  affection  ever  since."78 

He  was  a  large  man,  six  feet  in  height  and 
weighing  over  two  hundred  pounds.  His 
features,  too,  were  large,  and  his  clear  cut 
Roman  profile  and  the  velvet  cap  which  he 
wore  on  the  bench  in  his  later  years,  made 
him  a  noticeable  classic  there.79  He  gener- 
ally walked  to  and  from  the  Court,  and  only 
used  a  carriage  on  special  occasions.80  The 
newspapers  at  his  death  said  that  he  was 
worth  "$100,000  or  so  ;"81  but  unfortunately 
they  were  mistaken. 

A  writer  in  Harper's  Weekly  at  the  time 
of  his  death  (October  18, 1890)  says:  "Per- 
sonally, Justice  Miller  was  a  hearty,  genial, 
democratic  man.  His  life  was  laborious. 
He  loved  his  profession  and  his  work.  He 
was  usually  in  his  office  in  the  basement  of 
his  house  on  Massachusetts  Avenue,  at  work 
on  the  opinions  which  fell  to  his  lot  to  pre- 


62  SAMUEL  FREEMAN  MILLER 

pare,  when  lie  was  not  in  the  court  room.82 
An  occasional  dinner  at  the  White  House 
or  in  the  Supreme  Court  set,  which  is  tra- 
ditionally at  the  head  of  the  society  of 
Washington,  and  a  game  of  whist  now  and 
then,  constituted  his  social  pleasures.  He 
saw  everyone  who  called,  was  interested  in 
a  wide  range  of  subjects,  especially  of  the 
practical  kind,  but  most  of  his  literature 
was  found  in  the  law  books.  When  he  wan- 
dered from  them  like  a  good  many  other 
eminent  jurists,  he  found  delight  in  fiction. 
To  the  last  he  preserved  his  extraordinary 
intellectual  vigor  and,  to  within  a  year,  his 
wonderful  physique." 

Justice  Miller  married  first  a  Miss  Bal- 
linger,  of  Kentucky.  By  her  he  had  three 
daughters.  One  died  in  early  girlhood.  An- 
other married  George  B.  Corkhill,  Esq., 
then  of  Mt.  Pleasant,  Iowa,  afterwards  for 
long  United  States  District  Attorney  for 
the  District  of  Columbia.  Her  death  oc- 
curred about  1870.  The  third  married  W. 
F.  Stocking,  Esq.,  of  New  York,  and  still 
survives. 

After  the  death  of  his  first  wife,  Judge 
Miller  in  1857  married,  as  has  been  men- 
tioned, Mrs.  Eliza  W.  Eeeves,  widow  of 


A  CHARACTERIZATION  63 

Lewis  E.  Beeves,  Esq.,  of  Keokuk.  Her 
maiden  name  was  Winter  and  she  was  born 
at  Sharon,  Pennsylvania,  in  1828.  Her 
death  occurred  at  Washington,  December  1, 
1900,  of  heart  disease,  she  having  outlived 
her  husband  ten  years.  Two  children  of 
this  second  marriage  survive ;  Mrs.  Lida  M. 
Touzalin,  of  Colorado  Springs  and  New 
York,  and  Mr.  Irvine  Miller,  of  Spring- 
field, Ohio.83 

Justice  Miller  died  poor  and  left  no  in- 
come to  support  his  widow.  An  appeal  was 
published  in  the  American  Laiv  Review  for 
a  subscription  for  her  benefit.84 

The  memorial  presented  for  the  bench  and 
bar  of  Nebraska  by  Mr.  Woolworth,  says  of 
him :  "  Impatient  of  incompetency  of  coun- 
sel and  inconsequence  of  argument,  he  glad- 
ly accepted  all  real  aids  to  correct  conclu- 
sions  His  reasoning  was  direct,  rapid, 

accurate  and  certain,  so  that  in  the  result 
the  impression  was  not  of  the  process  so 
much  as  of  the  power  of  the  demonstration. 
To  him  may  be  applied  Charles  Lamb's  de- 
scription of  the  Old  Bencher  of  the  Inner 
Temple;  'His  step  was  massy  and  elephan- 
tine, his  face  square  as  the  lion's,  his  gait 
peremptory  and  path-keeping,  indivertible 


64  SAMUEL  FREEMAN  MILLER 

from  his  way  as  a  living  column. ' . . . .  When 
not  exercising  his  magistracy,  the  severity 
of  the  judicial  mien  gave  way  to  kindly  and 
gentle  impulses.  He  was  easy  of  approach, 
gracious  and  complacent."  Again  Mr. 
Woolworth  says:  "He  was  a  very  human 
man,  he  loved  the  wit  of  pithy  speech  and 
anecdote,  the  music  of  song  and  string,  the 
speed  of  the  horse,  the  game  of  endless  com- 
binations and  various  change  and  skill,  the 
pleasure  of  the  table,  and  the  splendor  of  a 
noble  woman."85  This  is  an  eloquent  ideali- 
zation of  the  venerable  Kentuckian. 

Chief  Justice  Fuller,  replying  to  the  ad- 
dress of  the  bar  on  Justice  Miller's  death, 
appositely  and  with  great  beauty,  said: 
"His  last  years  were  suffused  with  the  glow 
of  the  evening  time  of  a  life  spent  in  the 
achievement  of  worthy  ends  and  expecta- 
tions, and  he  has  left  a  memory  dear  to  his 
associates,  precious  to  his  country,  and  more 
enduring  than  the  books  in  which  his  judg- 
ments are  recorded."86 

So  he  sleeps  in  the  quiet  city  on  the  west- 
ern bank  of  the  great  river,  where  he  freed 
the  black  slaves  whom  he  brought  from 
Kentucky,  and  where  his  twelve  years  of 
achievement  at  the  bar  lead  up  to  the  great 


A  CHARACTERIZATION  65 

office  which  he  so  long  and  ably  upheld,  and 
"his  works  do  follow  him." 

Washington,  in  his  letter  to  the  president 
of  Congress,  submitting  the  results  of  the 
labors  of  the  constitutional  convention,  de- 
scribes it  with  his  customary  moderation  as 
"that  constitution  which  has  appeared  to  us 
as  most  advisable."  The  two  chief  guides 
to  the  due  understanding  of  "that  constitu- 
tion" are,  and  must  forever  remain,  the 
opinions  of  Chief  Justice  Marshall,  of  Vir- 
ginia, and  Associate  Justice  Miller,  of 
Iowa.  More  than  any  others,  they  have 
written  its  glossary  and  share  what  we  hope 
is  the  immortality  of  that  great  charter  of 
our  rights,  that  precious  epitome  of  our 
fundamental  and  paramount  law. 


NOTES  AND  REFERENCES 


NOTES  AND  REFERENCES 


CHAPTER    I 

1  The  materials  on  the  life  of  Samuel  Freeman  Miller 
are  exceedingly  meagre.  With  the  exception  of  judi- 
cial decisions,  a  calendar  of  which  is  given  in  Appen- 
dix D,  almost  no  original  material  seems  to  exist.  In 
the  newspapers  of  the  State  at  the  time  of  his  ap- 
pointment to  the  Supreme  Bench  and  in  the  news- 
papers and  magazines  generally  at  the  time  of  his 
death  may  be  found  notices  and  sketches  which  are 
of  some  value.  But  even  here  estimates  of  his  judicial 
abilities  and  of  his  public  work  largely  take  the  place 
of  definite  facts  concerning  his  life.  In  1891  there 
was  printed  a  volume  of  Proceedings  of  the  Bench 
and  Bar  of  the  Supreme  Court  of  the  United  States 
in  Memoriam  Samuel  F.  Miller.  This  contains  reso- 
lutions, passed  upon  the  death  of  Justice  Miller,  by 
the  bench  and  bar  not  only  of  the  Supreme  Court  but 
also  of  various  States  of  the  Union,  and  addresses  by 
members  of  the  bar  and  by  his  associates  of  the  Su- 
preme Court.  The  National  Cyclopaedia  of  Ameri- 
can Biography  and  Applet  on' s  Cyclopaedia  of  Biog- 
raphy give  brief  sketches  of  his  life;  and  in  the  An- 
nals of  Iowa  and  the  Iowa  Historical  Record  are  found 
a  number  of  articles  furnishing  valuable  information. 


70  SAMUEL  FREEMAN  MILLER 

2  The  Thirteenth  Amendment,  declared  in  force  De- 
cember 18,  1865;  the  Fourteenth  Amendment,  de- 
clared in  force  July  28,  1868;  and  the  Fifteenth 
Amendment,  declared  in  force  March  30,  1870. 

8  The  home  of  Henry  Clay  for  the  greater  part  of 
his  life  was  Lexington,  Kentucky.  The  "  historic 
spot"  referred  to  in  connection  with  Daniel  Boone 
was  probably  Boonesborough,  which  Boone  founded 
in  1775.  The  town  no  longer  exists. 

4  Benjamin  F.  Gue,  in  his  History  of  Iowa,  Vol.  IV, 
p.   192,  states  that  Miller  studied  law  with  Judge 
Ballinger  in  1845. 

5  Like  Justice  Miller,  Cassius  M.  Clay  was  a  native 
of  Madison  County,  Kentucky.     He  was  an  ardent 
abolitionist ;  and  in  1845  established  The  True  Ameri- 
can, a  vigorous  anti-slavery  paper,  at  Lexington,  Ken- 
tucky.   He  was  minister  to  Russia  in  1861,  and  again 
from  1863-1869.    He  served  in  both  the  Mexican  War 
and  the  Civil  War,  and  for  over  half  a  century  was 
prominent  in  political  circles. 

6  It  appears  that  Mr.  Miller  was  also  in  partnership 
with  J.  W.  Rankin  for  some  years.     Concerning  Mr. 
Rankin,  Dr.  J.  M.  Shaffer,  of  Keokuk,  quotes  in  a 
letter  the  following  from  the  Biographical  Catalogue 
of  Washington  and  Jefferson  College,  1889,  p.  309: 

"Rankin,  John  Walker.  Son  of  John  M.  and  Ag- 
nes M.  (Burns),  grandson  of  James  Burns,  cousin  of 
Robert  Burns  the  poet:  born  Ohio,  July  llth,  1823; 
teacher  Dalton,  0.  '41-42,  Fredericksburg  0.  '42-43, 
Wooster  '44-45,  law  student  Wooster  0.  with  J.  C. 


NOTES  AND  REFERENCES  71 

Miller  and  E.  Pardee.  Practiced  Law  Ashland  O. 
'46-48,  Keokuk,  Iowa  '48-69 :  Iowa  Senate :  Judge  of 
the  Court:  U.  S.  Army  colonel  17th  Regiment  Iowa 
Infantry:  married  Oct.  21,  1850,  Sara  D.  daughter 
of  Hon.  W.  P.  Thomasson,  Louisville,  Ky:  died  Keo- 
kuk Iowa  July  10th  '69,  cholera  morbus.  Lawyer." 

7  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  pp.  60  and  33. 

8  This  letter  is  printed  in  the  Annals  of  Iowa,  Third 
Series,  Vol.  II,  No.  7,  October,  1896,  p.  525. 

9  Samuel  J.  Kirkwood  was  Governor  of  Iowa  from 
1860  to  1864.    In  1866  he  was  chosen  United  States 
Senator  to  fill  out  the  unexpired  term  of  James  Har- 
lan.    In  1876  he  again  became  Governor  of  Iowa,  but 
resigned  in  1877  to  re-enter  the  United  States  Senate 
where  he  remained  until  1881.    In  that  year  he  was 
appointed  Secretary  of  the  Interior  under  President 
Garfield,  but  left  the  cabinet  in  the  following  year, 
His  death  occurred  at  Iowa  City,  Iowa,  in  1894. 

10  Harper's  New  Monthly  Magazine,  July,  1889,  p. 
177. 

CHAPTEE   II 

11  Congress,  on  July  15,  1862,  passed  an  act  rear- 
ranging the  United  States  Circuits.    Previous  to  this 
time  Iowa  and  a  number  of  other  States  had  not 
been  assigned  to  any  Circuit,  the  District  Courts  hav- 
ing the  power  of  Circuit  Courts  and  the  District 
Judges  acting  as   Circuit  Judges.     By  this  act  of 


72  SAMUEL  FREEMAN  MILLER 

1862  the  Ninth  Circuit  comprised  Missouri,  Iowa, 
Kansas,  and  Minnesota. — United  States  Statutes  at 
Large,  Vol.  XII,  p.  576.  Later  by  the  act  of  July 
23,  1866,  it  was  provided  "that  the  districts  of  Min- 
nesota, Iowa,  Missouri,  Kansas  and  Arkansas  shall 
constitute  the  eighth  circuit." — United  States  Stat- 
utes at  Large,  Vol.  XIV,  Ch.  209. 

12  Several  changes  in  the  personnel  of  the  Supreme 
Court  were  made  in  1861  and  1862.    In  April  of  1861 
Justice  John  McLean  died,  and  his  place  was  filled  by 
the  appointment  of  Noah  H.  Swayne.    Two  other  va- 
cancies were  created  by  the  death  of  Justice  Peter  V. 
Daniel,  on  June  30,  1860,  and  by  the  resignation,  in 
1861,  of  Justice  John  A.  Campbell  who  became  As- 
sistant Secretary  of  War  of  the  Confederate  States 
and  was  in  1865  one  of  the  peace  commissioners  ap- 
pointed to  confer  with  Lincoln  and  Seward.     These 
two  vacancies  were  not  filled  until  1862  when  Sam- 
uel F.  Miller  and  David  Davis  were  appointed  by 
President  Lincoln. 

13  The  National  Cyclopaedia  of  American  Biogra- 
phy, Vol.  II,  p.  473. 

14  John  A.  Kasson  came  to  Iowa  from  Massachu- 
setts about  1857.    In  the  campaign  of  1860  he  vigor- 
ously supported  Lincoln  for  President,  and  was  af- 
terward appointed  by  him  First  Assistant  Postmaster 
General.     He  was  a  Republican  member  of  Congress 
from  Iowa  from  1863  to  1867,  and  again  from  1873 
to  1877,  and  from  1881  to  1884.     He  was  sent  as 
Minister  to  Austria-Hungary  by  President  Hayes  in 
1877,  and  as  Minister  to  Germany  by  President  Ar- 


NOTES  AND  REFERENCES  73 

thur  in  1884.  He  has  been  prominent  in  diplomatic 
circles,  serving  on  a  number  of  important  commis- 
sions. 

15  This  letter  was  written  in  November,  1893,  and 
read  at  the  exercises  in  connection  with  the  presen- 
tation of  a  portrait  of  Justice  Miller  to  the  State  of 
Iowa  on  November  21,  1893.  The  portrait  was  painted 
by  Mr.  Charles  Noel  Flagg  upon  the  initiation  of  Mr. 
Charles  Aldrich.     The  Hon.  Henry  Strong  delivered 
an  address,  presenting  the  portrait  to  the  State;  and 
the  Secretary  of  State,  William  M.  McFarland,  ac- 
cepted in  a  brief  speech.     Beside  the  letter  of  Mr. 
Kasson,  there  were  letters  read  from  John  W.  Noble, 
Francis  Springer,  and  others  who  were  unable  to  be 
present  at  the  exercises.     The  proceedings  connected 
with  the  presentation  of  this  portrait  are  printed  in 
the  Annals  of  Iowa,  Third  Series,  Vol.  I,  No.  4,  Jan- 
uary, 1894,  p.  241. 

16  This  account  is  published  in  the  Iowa  Historical 
Record,  Vol.  VII,  No.  1,  January,  1891,  p.  16.    Henry 
W.  Lathrop  was  an  early  pioneer  of  Johnson  County, 
Iowa,  coming  to  Iowa  City  about  1847.     He  was  for 
a  time  editor  of  the  Iowa  City  Republican,  served  for 
two  years  as  County  Superintendent  of  Schools,  and 
was  for  a  number  of  years  Librarian  of  The  State 
Historical  Society  of  Iowa.     In  1893  he  published 
The  Life  and  Times  of  Samuel  J.  Kirkwood.    Lathrop 
was  a  personal  friend  of  Kirkwood,  and  the  manu- 
script for  the  biography  passed  through  the  hands 
of  Kirkwood  himself  before  being  published. 

17  James  W.  Grimes  came  to  Iowa  in  1836,  two  years 


74  SAMUEL  FREEMAN  MILLER 

before  it  was  organized  as  a  separate  Territory.  He 
took  an  active  part  from  the  first  in  legal  and  political 
matters,  serving  in  the  legislature  of  both  the  Terri- 
tory and  the  State.  He  was  Governor  of  Iowa  from 
1854  to  1858,  during  which  time  he  aided  in  the  or- 
ganization of  the  Republican  party  in  the  State. 
From  1859  to  1869  he  represented  the  State  of  Iowa 
in  the  United  States  Senate.  In  the  trial  of  Andrew 
Johnson  on  impeachment  by  the  House  of  Repre- 
sentatives, Senator  Grimes  spoke  and  voted  in  favor 
of  acquittal,  thereby  incurring  much  unpopularity  at 
the  time,  though  later  years  have  justified  his  posi- 
tion. He  left  the  Senate  in  poor  health,  and  died  in 
1872  at  his  home  in  Burlington,  Iowa. 

18  James  Harlan  was  chosen  in  1855  to  succeed  Au- 
gustus C.  Dodge  as  United  States  Senator  from  Iowa. 
Being  reflected  he  served  until  1865  when  he  entered 
President  Lincoln's  Cabinet  as  Secretary  of  the  In- 
terior.    He  resigned,  however,  during  the  same  year 
and  was  again  elected  to  the  Senate,  remaining  in 
that  body  until  1882  when  he  retired  from  public 
life. 

19  James  F.  Wilson  represented  Iowa  in  the  lower 
house  of  Congress  from  1861  to  1869  taking  an  active 
part  in  affairs  connected  with  the  War  and  Recon- 
struction.   In  1869  he  was  tendered  the  office  of  Sec- 
retary of  State  by  President  Grant,  but  declined  to 
accept.    In  1882  he  was  chosen  as  United  States  Sen- 
ator and  served  until  1895,  the  year  of  his  death. 

20  Iowa  Historical  Record,  Vol.  VII,  No.  2,  April, 
1891,  p.  88. 


NOTES  AND  REFERENCES  75 

21  David  B.  Henderson,  a  native  of  Scotland,  came 
to  Iowa  with  his  father's  family  in  1849.    While  at- 
tending Upper  Iowa  University  the  War  of  the  Re- 
bellion broke  out  and  he  entered  the  service.    In  1882 
he  was  chosen  a  member  of  the  lower  house  of  Con- 
gress and  served  until  1903.     In  1899  he  was  made 
Speaker  of  the  House  of  Representatives  and  held 
that  position  until  he  left  Congress  in  1903. 

22  Noah  H.  Swayne,  Ohio ;  Samuel  F.  Miller,  Iowa ; 
David  Davis,  Illinois;  Stephen  J.  Field,  California; 
and  Salmon  P.  Chase,  Ohio. 

23  William  R.  Day,  of  Ohio,  and  Oliver  W.  Holmes, 
of  Massachusetts. 

CHAPTER   III 

24  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  26. 

25  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  61. 

26  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  38. 

27  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  60. 

28  Annals  of  Iowa,  Third  Series,  Vol.  I,  No.  4,  Jan- 
uary, 1894,  p.  252.     From  the  calendar  of  opinions 


76  SAMUEL  FREEMAN  MILLER 

given  in  Appendix  D  below,  it  appears  that  Justice 
Miller  wrote  141  opinions  on  Constitutional  Law. 

29  Truman  v .  Fenton,  Cowper,  544. 

30  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  35. 

81  Chicago  Evening  News,  October  15,  1890. 

32  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  38. 

33  Buck  v.  Colbath,  3  Wallace  334. 

34  Slaughter  House  Cases,  16  Wallace  36. 

35  In  re  Burrus,  136  United  States  586. 

36  Loan  Association  v.  Topeka,  20  Wallace  655. 

37  In  re  Neagle,  135  United  States  1. 

38  Hepburn  v.  Griswold,  8  Wallace  603. 

39  Legal  Tender  Cases,  12  Wallace  457. 
Railroad  Company  v.  Johnson,  15  Wallace  195. 

40  Harper's  Weekly,  October  18,  1890. 

41  State  Tax  on  Railway  Gross  Receipts,  15  Wallace 

284. 

42  Philadelphia  and  Southern  Steamship  Company 
v.  Pennsylvania,  122  United  States  326. 

43  Murdock  v.  City  of  Memphis,  20  Wallace  614 
44Marbury  v.  Madison,  1  Cranch  137. 


NOTES  AND  REFERENCES  77 

45  United  States  v.  Schurz,  102  United  States  378. 

46  Johnson  v.  Towsley,  13  Wallace  72. 

47  United  States  v.  Throckmorton,  98  United  States 
61. 

48  Love  joy  v.  Murray,  3  Wallace  1. 

49  Brinsmead  v.  Harrison,  Law  Reports,  1  Common 
Pleas  547. 

50  The  Electoral  Commission  was  composed  of  the 
following  persons: — 

From  the  United  States  Supreme  Court: 

Nathan  Clifford 

William  Strong 

Samuel  F.  Miller 

Stephen  J.  Field 

Joseph  P.  Bradley 
From  the  United  States  Senate: 

George  F.  Edmunds 

Oliver  P.  Morton 

Frederick  T.  Frelinghuysen 

Thomas  F.  Bayard 

Allen  G.  Thurman 

Francis  Kernan  (substituted  February  26,  1877, 
because  of  Senator  Thurman 's  physical  disa- 
bility). 
From  the  House  of  Representatives: 

Henry  B.  Payne 

Eppa  Hunton 

Josiah  G.  Abbott 

James  A.  Garfield 

George  F.  Hoar 


78  SAMUEL  FEEEMAN  MILLER 

The  proceedings  of  the  Electoral  Commission  are 
printed  in  the  Congressional  Record,  44th  Congress, 
2nd  Session,  Vol.  V,  Part  4. 

CHAPTER   IV 

61  This  address  is  found  in  the  Albany  Law  Journal, 
Vol.  XVIII,  November  23,  1878,  p.  405.  The  quota- 
tion which  follows  is  from  page  408. 

82  The  Trustees  of  Dartmouth  College  v.  Woodward, 
4  Wheaton  518. 

63  This  address  is  printed  in  full  in  Appendix  C  be- 
low. 

B4 121  Pennsylvania  State  Reports,  p.  xix. 

55  For  this  address  in  full  see  Appendix  B  below. 

66  Articles  or  notes  upon  the  derivation  of  the  name 
Iowa  are  found  in  the  Annals  of  Iowa,  Vol.  II,  April, 
1864,  p.  268,  Vol.  X,  July,  1872,  p.  235,  Vol.  X,  Oc- 
tober, 1872,  p.  286,  Vol.  I  (Howe's  Annals),  January, 
1882,  p.  4,  and  Third  Series,  Vol.  Ill,  No.  8,  January, 
1899,  p.  641 ;  also  in  the  Iowa  Historical  Record,  Vol. 
I,  No.  3,  July,  1885,  p.  135,  and  Vol.  XII,  No.  2, 
April,  1896,  p.  458. 

5T  This  treaty  was  negotiated  with  the  Sac  and  Fox 
Indians  by  General  Winfield  Scott,  of  the  United 
States  Army,  and  Governor  John  Reynolds,  of  Illi- 
nois, at  Fort  Armstrong,  Rock  Island,  Illinois,  on 
September  21,  1832. — Indian  Affairs:  Laws  and 
Treaties,  Vol.  II,  p.  349. 


NOTES  AND  REFERENCES  79 

58  George  W.  McCrary  was  early  associated  with 
Samuel  F.  Miller.    At  the  age  of  nineteen  he  began 
the  study  of  law  in  the  office  of  Rankin  and  Miller, 
and   when   Miller   was    appointed   to   the    Supreme 
Bench,  he  became  a  member  of  the  firm.    He  served 
in  the  State  legislature  and  in  the  lower  house  of  the 
United  States  Congress  for  a  number  of  years.     In 
1877  he  was  appointed  Secretary  of  War  by  Presi- 
dent Hayes,  but  resigned  to  become  United  States 
Circuit  Judge  of  the  Eighth  Circuit  in  1880.    Four 
years  later  he  accepted  the  position  of  counsellor  for 
the  Sante  Fe  Railroad. 

59  John  F.  Dillon,  after  serving  for  several  years  as 
District  Judge  and  as  Justice  of  the  Supreme  Court 
of  Iowa,  was  appointed  by  President  Grant,  United 
States  Circuit  Judge  in  the  Eighth  Circuit.     After 
ten  years '  service  he  resigned  this  position  to  re-enter 
the  practice  of  law  in  New  York  City.     He  became 
also  a  member  of  the  faculty  of  the  Columbia  College 
Law  School.     His  legal  and  historical  publications 
have  given  him  an  international  reputation. 

60  His  address  upon  this  occasion  is  printed  in  full 
in  Appendix  A  below.    The  address  for  the  State  of 
Iowa  at  the  Centennial  Celebration  in  1876  was  de- 
livered by  Hon.  C.  C.  Nourse. 

61  Published  by  Banks  &  Brothers,  New  York  and 
Albany,  1891. 

CHAPTEB   V 

62  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  22. 


80  SAMUEL  FREEMAN  MILLER 

es  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  61. 

64  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  17. 

65  Annals  of  Iowa,  Third  Series,  Vol.  I,  No.  4,  Jan- 
uary, 1894,  p.  247. 

66  Albany  Law  Journal,  Vol.   LXII,   October  25, 
1890,  p.  321. 

67  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  73. 

68  Chicago  Times,  October  14,  1890.    Chicago  Trib- 
une, October  14,  1890. 

69  Congress  in  1869  provided  that  any  judge  of  any 
court  of  the  United  States  could,  upon  attaining  the 
age  of  seventy  years,  and  having  held  his  commission 
at  least  ten  years,  resign  and  receive  his  full  salary 
for  the  remainder  of  his  life. — United  States  Statutes 
at  Large,  Vol.  XVI,  p.  45. 

70  The  Des  Moines  Leader,  October  16,  1890. 

71  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  64. 

72  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F, 
Miller,  p.  44. 


NOTES  AND  REFERENCES  81 

73  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  65. 

74  New  York  Times,  October  17,  1890,  p.  9. 
Iowa  State  Press  (Iowa  City),  October  22,  1890. 
The  Des  Moines  Leader,  October  23,  1890. 

75  Harper's  Weekly,  October  18,  1890. 

76  Albany  Law  Journal,  Vol.  XVIII,  November  23, 
1878,  p.  408. 

77  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  12. 

78  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  8. 

79  Chicago  Times,  October  14,  1890. 

80  Chicago  Tribune,  October  14,  1890. 

81  Chicago  Times,  October  14,  1890. 

82  This    house   on   Massachusetts    Avenue    is   now 
owned  and  occupied  by  Senator  J.  P.  Dolliver,  junior 
Senator  from  Iowa. 

83  These  family  matters  are  taken  from  the  Annals 
of  Iowa,  Third  Series,  Vol.  IV,  No.  8,  January,  1901, 
p.  639,  and  from  information  furnished  the  writer 
by  a  nephew  of  Justice  Miller. 

84  American  Law   Review,  Vol.   XXVI,   January- 
February,  1892,  p.  97. 

6 


82  SAMUEL  FREEMAN  MILLER 

85  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  pp.  54,  66. 

86  Proceedings  of  the  Bench  and  Bar  of  the  Supreme 
Court  of  the  United  States  in  Memoriam  Samuel  F. 
Miller,  p.  39. 


APPENDIX   A 


APPENDIX  A 
THE  FORMATION  OF  THE  CONSTITUTION1 

MR.  PRESIDENT  AND  FELLOW-COUNTRYMEN: — The 
people  of  the  United  States,  for  ten  or  twelve  years 
past,  have  commemorated  certain  days  of  those  dif- 
ferent years  as  the  centennial  anniversaries  of  im- 
portant events  in  their  history.  These  gatherings  of 
the  people  have  been  in  the  localities  where  the  his- 
toric events  occurred.  It  is  little  over  eleven  years 
since  the  great  centennial  anniversary  of  the  adoption 
of  the  Declaration  of  Independence  was  celebrated 
in  this  city,  where  the  Congress  sat  which  proclaimed 
it.  The  grand  industrial  exhibition,  the  august  cere- 
monies of  the  day,  and  all  the  incidents  of  the  com- 
memoration, in  no  respect  fell  below  what  was  de- 
manded by  the  importance  of  the  occasion.  May  it 
be  long  before  the  people  of  the  United  States  shall 
cease  to  take  a  deep  and  pervading  interest  in  the 


1  An  address  delivered  by  Justice  Samuel  F.  Miller  as  a  part 
of  the  ceremonies  of  "Memorial  Day"  which  took  place  in 
Independence  Square,  Philadelphia,  on  September  17,  1887. 
The  occasion  was  the  celebration  of  the  one  hundredth  anni- 
versary of  the  promulgation  of  the  Constitution  of  the  United 
States.  The  address  as  here  given  is  taken  from  Carson's 
History  of  the  Celebration  of  the  One  Hundredth  Anniversary 
of  the  Promulgation  of  the  Constitution  of  the  United  States. 
Vol.  II,  p.  262. 


86  SAMUEL  FREEMAN  MILLER 

Fourth  of  July,  as  the  birthday  of  our  national  life, 
or  the  event  which  then  occurred  shall  be  subordi- 
nated to  any  other  of  our  national  history. 

We  are  met  here  to  commemorate  another  event  in 
our  progress,  in  many  respects  inferior  to  none  in 
importance  in  our  own  history,  or  in  the  history  of 
the  world.  It  is  the  formation  of  the  Constitution  of 
the  United  States,  which,  on  this  day,  one  hundred 
years  ago,  was  adopted  by  the  Convention  which 
represented  the  people  of  the  United  States,  and 
which  was  then  signed  by  the  delegates  who  framed 
it,  and  published  as  the  final  result  of  their  arduous 
labors, — of  their  most  careful  and  deliberate  consid- 
eration,— and  of  a  love  of  country  as  unmixed  with 
selfishness  as  human  nature  is  capable  of. 

In  looking  at  the  names  of  those  who  signed  the 
instrument,  our  sentiment  of  pious  reverence  for  the 
work  of  their  hands  hardly  permits  us  to  discrimi- 
nate by  special  mention  of  any.  But  it  is  surely  not 
in  bad  taste  to  mention  that  the  name  of  George 
Washington  is  there  as  its  first  signer  and  president 
of  the  Convention;  the  man  of  whom  it  was  after- 
wards so  happily  declared  by  the  representatives  of 
a  grateful  people,  that  he  was  "first  in  war,  first  in 
peace,  and  first  in  the  hearts  of  his  countrymen." 
He  was  the  first  man  selected  to  fill  the  chief  execu- 
tive office  of  President  created  by  the  Constitution; 
and  James  Madison,  another  name  found  in  the  list 
of  signers,  filled  the  same  office. 

James  Wilson,  of  Pennsylvania,  John  Blair,  of  Vir- 
ginia, and  John  Rutledge,  of  South  Carolina,  were 
made  justices  of  the  court  established  by  that  instru- 


FORMATION  OF  THE  CONSTITUTION    87 

ment,  with  a  large  view  among  its  other  functions  of 
expounding  its  meaning.  With  no  invidious  intent 
it  must  be  here  said  that  one  of  the  greatest  names 
in  American  history — Alexander  Hamilton — is  there 
as  representing  alone  the  important  State  of  New 
York,  his  colleagues  from  that  State  having  with- 
drawn from  the  Convention  before  the  final  vote  on 
the  Constitution.  Nor  is  it  permissible,  standing  in 
this  place  and  in  this  connection,  to  omit  to  point  to 
the  name  of  Benjamin  Franklin,  the  venerable  phi- 
losopher and  patriot;  of  Robert  Morris,  the  financier 
of  the  Revolution;  and  of  Gouverneur  Morris,  the 
brilliant  scholar  and  profound  statesman. 

It  is  necessary  to  any  just  appreciation  of  the  Con- 
stitution, whose  presentation  for  acceptance  to  the 
people  of  the  United  States  a  hundred  years  ago,  on 
this  day  we  commemorate,  that  some  statement  of  its 
origin,  and  of  the  causes  which  led  to  it,  should  be 
made.  The  occasion  requires  that  this  shall  be  brief. 

The  war  of  seven  years,  which  was  waged  in  sup- 
port of  the  independence  of  these  States,  former 
provinces  of  Great  Britain, — an  independence  an- 
nounced by  the  declaration  of  July  4,  1776,  already 
referred  to, — the  war  which  will  always  be  known  in 
the  history  of  this  country  as  the  war  of  the  Revo- 
lution, was  conducted  by  a  union  of  those  States 
under  an  agreement  between  them  called  Articles  of 
Confederation.  Under  these  Articles  each  State  was 
an  integer  of  equal  dignity  and  power  in  a  body 
called  the  Congress,  which  conducted  the  affairs  of 
the  incipient  nation.  Each  of  the  thirteen  States 
which  composed  this  confederation  sent  to  Congress 


88  SAMUEL  FREEMAN  MILLER 

as  many  delegates  as  it  chose,  without  reference  to 
its  population,  its  wealth,  or  the  extent  of  its  terri- 
tory; but  the  vote  upon  the  passage  of  any  law,  or 
resolution,  or  action  suggested,  was  taken  by  States, 
the  members  from  each  State,  however  numerous  or 
however  small,  constituting  one  vote,  and  a  majority 
of  these  votes  by  States  being  necessary  to  the  adop- 
tion of  the  proposition. 

The  most  important  matters  on  which  Congress 
acted  were  but  little  else  than  recommendation  to  the 
States,  requesting  their  aid  in  the  general  cause. 
There  was  no  power  in  the  Congress  to  raise  money 
by  taxation.  It  could  declare,  by  way  of  assessment, 
the  amount  each  State  should  contribute  to  the  sup- 
port of  the  government,  but  it  had  no  means  of  en- 
forcing compliance  with  this  assessment.  It  could 
make  requisitions  on  each  State  for  men  for  the  army 
which  was  fighting  for  them  all,  but  the  raising  of 
this  levy  was  wholly  dependent  upon  the  action  of 
the  States  respectively.  There  was  no  authority  to 
tax,  or  otherwise  regulate,  the  import  or  export  of 
foreign  goods,  nor  to  prevent  the  separate  States  from 
taxing  property  which  entered  their  ports,  though 
the  property  so  taxed  was  owned  by  citizens  of  other 
States. 

The  end  of  this  war  of  the  Revolution,  which  had 
established  our  entire  independence  of  the  crown  of 
Great  Britain,  and  which  had  caused  us  to  be  recog- 
nized theoretically  as  a  member  of  the  family  of  na- 
tions found  us  with  an  empty  treasury,  an  impaired 
credit,  a  country  drained  of  its  wealth  and  impover- 
ished by  the  exhaustive  struggle.  It  found  us  with  a 


FORMATION  OF   CONSTITUTION         89 

large  national  debt  to  our  own  citizens  and  to  our 
friends  abroad,  who  had  loaned  us  their  money  in 
our  desperate  strait;  and,  worst  of  all,  it  found  us 
with  an  army  of  unpaid  patriotic  soldiers,  who  had 
endured  every  hardship  that  our  want  of  means 
could  add  to  the  necessary  incidents  of  a  civil  war, 
many  of  whom  had  to  return  penniless  to  families 
whose  condition  was  pitiable. 

For  all  these  evils  the  limited  and  imperfect  powers 
conferred  by  the  Articles  of  Confederation  afforded 
no  adequate  remedy.  The  Congress,  in  which  was 
vested  all  the  authority  that  those  Articles  granted 
to  the  general  government,  struggled  hopelessly  and 
with  constant  failure  from  the  treaty  of  peace  with 
England,  in  1783,  until  the  formation  of  the  new 
Constitution.  Many  suggestions  were  made  for  en- 
larging the  powers  of  the  Federal  government  in  re- 
gard to  particular  subjects.  None  were  successful, 
and  none  proposed  the  only  true  remedy,  namely, 
authority  in  the  national  government  to  enforce  the 
powers  which  were  intrusted  to  it  by  the  Articles  of 
Confederation  by  its  own  immediate  and  direct  ac- 
tion on  the  people  of  the  States. 

It  is  not  a  little  remarkable  that  the  suggestion 
which  finally  led  to  the  relief,  without  which  as  a 
nation  we  must  soon  have  perished,  strongly  sup- 
ports the  philosophical  maxim  of  modern  times, — 
that  of  all  the  agencies  of  civilization  and  progress 
of  the  human  race,  commerce  is  the  most  efficient. 
What  our  deranged  finances,  our  discreditable  fail- 
ure to  pay  debts,  and  the  sufferings  of  our  soldiers 
could  not  force  the  several  States  of  the  American 


90  SAMUEL  FREEMAN  MILLER 

Union  to  attempt  was  brought  about  by  a  desire  to 
be  released  from  the  evils  of  an  unrelegated  and  bur- 
densome commercial  intercourse,  both  with  foreign 
nations  and  between  the  several  States. 

After  many  resolutions  by  State  legislatures  which 
led  to  nothing,  one  was  introduced  by  Mr.  Madison 
into  that  of  Virginia,  and  passed  on  the  twenty-first 
day  of  February,  1786,  which  appointed  Edmund 
Randolph,  James  Madison,  Jr.,  and  six  others,  com- 
missioners, "to  meet  such  commissioners  as  may  be 
appointed  by  other  States  in  the  Union,  at  a  time  and 
place  to  be  agreed  upon,  to  take  into  consideration 
the  trade  of  the  United  States;  to  examine  the  rela- 
tive situation  and  trade  of  the  said  States;  to  con- 
sider how  far  a  uniform  system  in  their  commercial 
regulations  may  be  necessary  to  their  common  inter- 
est and  their  permanent  harmony " 

This  committee  was  directed  to  transmit  copies  of 
the  resolution  to  the  several  States,  with  a  letter  re- 
specting their  concurrence,  and  proposing  a  time  and 
place  for  the  meeting.  The  time  agreed  upon  was  in 
September,  1786,  and  the  place  was  Annapolis.  Nine 
States  appointed  delegates,  but  those  of  five  States 
only  attended.  These  were  New  York,  New  Jersey, 
Pennsylvania,  Virginia,  and  Delaware.  Four  other 
States  appointed  delegates,  who,  for  various  reasons, 
did  not  appear,  or  came  too  late.  Of  course  such  a 
convention  as  this  could  do  little  but  make  recom- 
mendations. What  it  did  was  to  suggest  a  conven- 
tion of  delegates  from  all  the  States,  "to  devise  such 
further  provisions  as  might  appear  to  be  necessary 
to  render  the  Constitution  of  the  Federal  government 


FORMATION  OF   CONSTITUTION         91 

adequate  to  the  exigencies  of  the  Union. "  It  also 
proposed  that  whatever  should  be  agreed  upon  by 
such  a  convention  should  be  reported  to  Congress, 
and  confirmed  by  the  legislatures  of  all  the  States. 

This  resolution  and  an  accompanying  report  were 
presented  to  Congress,  which  manifested  much  reluc- 
tance and  a  very  unreasonable  delay  in  acting  upon 
it,  and  a  want  of  any  earnest  approval  of  the  plan. 
But  the  proceedings  of  the  Annapolis  Convention  had 
been  laid  before  the  legislatures  of  the  States,  where 
they  met  with  a  more  cordial  reception,  and  the  ac- 
tion of  several  of  them  in  approving  the  recom- 
mendation for  a  convention,  and  appointing  dele- 
gates to  attend  it,  finally  overcame  the  hesitation  of 
Congress.  That  body,  accordingly,  on  the  21st  of 
February,  1787,  resolved  that,  in  its  opinion,  "it  was 
expedient  that  on  the  second  Monday  in  May  next, 
a  convention  of  delegates,  who  shall  have  been  ap- 
pointed by  the  several  States,  be  held  at  Philadelphia, 
for  the  sole  and  express  purpose  of  revising  the  Ar- 
ticles of  Confederation,  and  reporting  to  Congress 
and  the  several  legislatures  such  alterations  and  pro- 
visions therein  as  shall,  when  agreed  to  in  Congress, 
and  confirmed  by  the  States,  render  the  Federal  Con- 
stitution adequate  to  the  exigencies  of  government 
and  the  preservation  of  the  Union." 

On  the  day  here  recommended, — May  14, — dele- 
gates from  Virginia  and  Pennsylvania  met  and  ad- 
journed from  day  to  day  until  the  25th,  during  which 
period  delegates  from  other  States  made  their  ap- 
pearance. On  that  day  the  delegates  of  seven  States, 
duly  appointed,  being  present,  the  Convention  was 


92  SAMUEL  FREEMAN  MILLER 

organized  by  the  election  of  General  Washington  as 
its  president,  at  the  suggestion  of  Franklin.  On  the 
28th  the  representation  in  the  Convention  was  in- 
creased to  nine  States;  and  on  the  29th  Edmund 
Randolph,  delegate  from  Virginia,  and  governor  of 
that  State  inaugurated  the  work  of  the  Convention 
by  a  speech  in  which  he  presented  an  outline  of  a 
constitution  for  its  consideration. 

From  this  time  on  the  Convention  labored  assidu- 
ously and  without  intermission,  until,  on  the  seven- 
teenth day  of  September,  one  hundred  years  ago,  it 
closed  its  work  by  presenting  a  completed  instrument, 
which,  being  subsequently  ratified  by  the  States, 
became  the  Constitution  of  the  United  States  of 
America. 

All  the  States  except  Rhode  Island  were  finally 
represented  in  the  Convention  and  took  part  in  fram- 
ing the  instrument,  a  majority  of  the  delegates  of 
each  State  assenting  to  it.  That  State  sent  no  dele- 
gate to  the  Convention;  and  when  the  Constitution 
was  presented  to  it  for  ratification  no  convention  was 
called  for  that  purpose  until  after  it  had  gone  into 
operation  as  the  organic  law  of  the  national  govern- 
ment; and  it  was  two  years  before  she  accepted  it 
and  became  in  reality  a  State  of  the  Union. 

It  is  a  matter  for  profound  reflection  by  the  phil- 
osophical statesman,  that  while  the  most  efficient  mo- 
tive in  bringing  the  other  States  into  this  Convention 
was  a  desire  to  amend  the  situation  in  regard  to  trade 
among  the  States,  and  to  secure  a  uniform  system  of 
commercial  regulation,  as  necessary  to  the  common 
interest  and  permanent  harmony,  the  course  of  Rhode 


FORMATION  OF  CONSTITUTION         93 

Island  was  mainly  governed  by  the  consideration  that 
her  superior  advantages  of  location,  and  the  posses- 
sion of  what  was  supposed  to  be  the  best  harbor  on 
the  Atlantic  coast,  should  not  be  subjected  to  the  con- 
trol of  a  Congress  which  was  by  that  instrument  ex- 
pressly authorized  "to  regulate  commerce  with  for- 
eign nations  and  among  the  several  States,"  and 
which  also  declared  that  "no  preference  shall  be 
given  by  any  regulation  of  commerce  or  revenue  to 
the  ports  of  one  State  over  those  of  another,  nor  any 
vessel  bound  to  or  from  one  State  be  obliged  to  enter, 
clear,  or  pay  duties  in  another." 

That  the  spirit  which  actuated  Rhode  Island  still 
exists,  and  is  found  in  other  States  of  the  Union,  may 
be  inferred  from  the  fact  that  at  no  time  since  the 
formation  of  the  Union  has  there  been  a  period  when 
there  were  not  to  be  found  in  the  statute-books  of 
some  of  the  States  acts  passed  in  violation  of  this 
provision  of  the  Constitution  imposing  taxes  and 
other  burdens  upon  the  free  interchange  of  commodi- 
ties, discriminating  against  the  productions  of  other 
States,  and  attempting  to  establish  regulations  of 
commerce  which  the  Constitution  says  shall  only  be 
done  by  the  Congress  of  the  United  States. 

During  the  session  of  the  Supreme  Court  which 
ended  in  May  last  no  less  than  four  or  five  decisions 
of  the  highest  importance  were  rendered,  declaring 
statutes  of  as  many  different  States  to  be  void  because 
they  were  forbidden  by  this  provision  of  the  Federal 
Constitution. 

Perhaps  the  influence  of  commerce  in  bringing  into 
harmonious  action  a  people  whose  interests  are  com- 


94  SAMUEL  FREEMAN  MILLER 

mon,  while  the  governments  by  which  they  are  con- 
trolled are  independent  and  hostile,  is  nowhere  more 
strikingly  illustrated  than  in  the  unification  of  the 
German  people  which  has  taken  place  under  the  ob- 
servation of  most  of  us.  Only  a  few  years  ago, — very 
few  in  the  chronicles  of  a  nation, — what  is  now  the 
great  central  empire  of  Europe  consisted  of  a  num- 
ber of  separate  kingdoms,  principalities,  and  free 
cities.  Some  of  these  were  so  powerful  as  to  be  rated 
among  the  great  powers  of  Europe.  Several  of  them 
were  small  dukedoms,  each  with  an  autonomy  and 
government  of  its  own.  Each  levied  taxes  and  raised 
revenue  from  all  the  merchandise  carried  through  its 
territory,  and  customs  officers  at  the  crossing  of  every 
line  which  divided  one  of  them  from  the  other  col- 
lected duties  on  all  that  could  be  found  in  the  bag- 
gage or  on  the  person  of  the  traveller.  When  the 
railroad  system  had  pervaded  Europe,  and  persons 
and  property  could  be  carried  by  them  for  two  or 
three  hundred  miles  on  a  continuous  track  through 
many  of  these  States,  the  burden  became  intolerable. 
Their  governments  began  to  make  treaties  for  the 
rates  of  taxation,  for  freer  transit  of  persons  and 
goods,  and  to  these  treaties  the  States  became  parties 
one  after  another,  until  the  Zollvereins  of  North  Ger- 
many and  of  South  Germany  included  at  last  all  of 
them  except  Austrian  Germany.  When  this  was 
done  the  unification  of  Germany  was  a  foregone  con- 
clusion. The  war  with  France  only  hastened  what 
the  Zollverein  had  demonstrated  to  be  a  necessity. 
What  her  poets  and  statesmen,  and  the  intense  long- 
ing of  the  sons  of  Germany  for  a  union  of  all  who 


FORMATION  OF   CONSTITUTION         95 

spoke  the  language  of  the  Fatherland,  and  the  wis- 
dom of  her  patriotic  leaders  had  never  been  able  to 
accomplish,  was  attained  through  Zollverein,  and  the 
demands  of  commerce  were  more  powerful  in  the  uni- 
fication of  the  German  people  than  all  the  other  in- 
fluences which  contributed  to  that  end. 

We  need  not  here  pursue  the  detailed  history  of 
the  ratification  and  adoption  of  the  Constitution  by 
the  States.  The  instrument  itself  and  the  resolution 
of  Congress  submitting  it  to  the  States  both  provided 
that  it  should  go  into  operation  when  adopted  by 
nine  States.  Eleven  of  them  accepted  it  in  their  first 
action  in  the  matter.  North  Carolina  delayed  a  short 
time,  and  Rhode  Island  two  years  later  changed  her 
mind;  and  thus  the  thirteen  States  which  had  united 
in  the  struggle  for  independence  became  a  nation 
under  this  form  of  government. 

Let  us  consider  now  the  task  which  the  Convention 
undertook  to  perform,  the  difficulties  which  lay  in 
its  way,  and  the  success  which  attended  its  efforts. 
In  submitting  to  Congress  the  result  of  their  labors, 
the  Convention  accompanied  the  instrument  with  a 
letter  signed  under  its  authority  by  its  president,  and 
addressed  to  the  president  of  Congress.  Perhaps  no 
public  document  of  the  times,  so  short,  yet  so  impor- 
tant, is  better  worth  consideration  than  this  letter, 
dated  September  17,  1787.  From  it  I  must  beg  your 
indulgence  to  read  the  following  extracts: 

"Sir, — We  have  now  the  honor  to  submit  to  the 
consideration  of  the  United  States  in  Congress  as- 
sembled that  Constitution  which  has  appeared  to  us 
the  most  advisable.  The  friends  of  our  country  have 


96  SAMUEL  FREEMAN  MILLER 

long  seen  and  desired  that  the  power  of  making  war, 
.peace,  and  treaties,  that  of  levying  money  and  regu- 
lating commerce,  and  the  correspondent  executive 
and  judicial  authorities,  should  be  fully  and  effec- 
tually vested  in  the  general  government  of  the  Un- 
ion ;  but  the  impropriety  of  delegating  such  extensive 
trusts  to  one  body  of  men  [meaning  Congress]  is 
evident.  Hence  results  the  necessity  of  a  different 
organization.  It  is  obviously  impracticable  in  the 
Federal  government  of  these  States  to  secure  all  the 
rights  of  independent  sovereignty  to  each,  and  yet 
provide  for  the  interest  and  safety  of  all."  Again: 

"In  all  our  deliberations  on  this  subject  we  kept 
steadily  in  view  that  which  appears  to  us  the  greatest 
interest  of  every  true  American, — the  consolidation 
of  our  Union?  in  which  is  involved  our  prosperity, 
felicity,  safety,  perhaps  our  national  existence.  This 
important  consideration,  seriously  and  deeply  im- 
pressed on  our  minds,  led  each  State  in  the  Conven- 
tion to  be  less  rigid  on  points  of  inferior  magnitude 
than  might  otherwise  be  expected;  and  thus  the  Con- 
stitution which  we  now  present  is  the  result  of  a  spirit 
of  amity,  and  of  that  natural  deference  and  conces- 
sion which  the  peculiarity  of  our  political  situation 
rendered  indispensable. ' ' 

The  instrument  framed  under  the  influence  of 
these  principles  is  introduced  by  language  very  simi- 
lar. The  opening  sentence  reads:  "We,  the  people 
of  the  United  States,  in  order  to  form  a  more  perfect 
union,  establish  justice,  insure  domestic  tranquility, 
provide  for  the  common  defence,  promote  the  general 
welfare,  and  secure  the  blessings  of  liberty  to  our- 


FORMATION  OF   CONSTITUTION         97 

selves  and  our  posterity,  do  ordain  and  establish 
this  Constitution  for  the  United  States  of  America." 
This  Constitution  has  been  tested  by  the  experience 
of  a  century  of  its  operation,  and  in  the  light  of  this 
experience  it  may  be  well  to  consider  its  value.  Many 
of  its  most  important  features  met  with  earnest  and 
vigorous  opposition.  This  opposition  was  shown  in 
the  Convention  which  presented  it,  and  the  conven- 
tions of  the  States  called  to  ratify  it.  In  both,  the 
struggle  in  its  favor  was  arduous  and  doubtful,  the 
opposition  able  and  active.  For  a  very  perspicuous 
and  condensed  statement  of  those  objections,  show- 
ing the  diversity  of  their  character,  the  importance 
of  some  and  the  insignificance  of  others,  I  refer  my 
hearers  to  Section  297  of  the  Commentaries  of  Mr. 
Justice  Story  on  the  Constitution.  Perhaps  the  wis- 
dom of  this  great  instrument  cannot  be  better  seen 
than  by  reconsidering  at  this  time  some  of  the  most 
important  objections  then  made  to  it.  One  of  these 
which  caused  the  opposition  of  several  delegates  in 
the  Constitutional  Convention,  and  their  refusal  to 
sign  it,  was  the  want  of  a  well-defined  bill  of  rights. 
The  royal  charters  of  many  of  the  colonies,  and  the 
constitutions  adopted  by  several  States  after  the  re- 
volt, had  such  declarations,  mainly  assertions  of  per- 
sonal rights  and  of  propositions  intended  to  give 
security  to  the  individual  in  his  right  of  person  and 
property  against  the  exercise  of  authority  by  govern- 
ing bodies  of  the  State.  The  Constitution  was  not 
void  of  such  protection.  It  provided  for  the  great 
writ  of  habeas  corpus,  the  means  by  which  all  unlaw- 
ful imprisonments  and  restraints  upon  personal  lib- 


98  SAMUEL  FREEMAN  MILLER 

erty  had  been  removed  in  the  English  and  American 
courts  since  Magna  Charta  was  proclaimed;  and  it 
declared  that  the  privilege  of  that  writ  should  not  be 
suspended,  unless  in  cases  of  rebellion  or  invasion 
the  public  safety  should  require  it.  The  Constitution 
also  declared  that  no  ex  post  facto  law  or  bill  of  at- 
tainder should  be  passed  by  Congress;  and  no  law 
impairing  the  obligation  of  contracts  by  any  State. 
It  secured  the  trial  by  jury  of  all  crimes  within  the 
State  where  the  offence  was  committed.  It  denned 
treason  so  as  to  require  some  overt  act,  which  must 
be  proved  by  two  witnesses,  or  confessed  in  open 
court,  for  conviction. 

It  can  hardly  be  said  that  experience  has  demon- 
strated the  sufficiency  of  these  for  the  purpose  which 
the  advocates  of  a  bill  of  rights  had  in  view,  because 
upon  the  recommendation  of  several  of  the  States, 
made  in  the  act  of  ratifying  the  Constitution,  or  by 
legislatures  at  their  first  meeting  subsequently,  twelve 
amendments  were  proposed  by  Congress,  ten  of  which 
were  immediately  ratified  by  the  requisite  number  of 
States,  and  became  part  of  the  Constitution  within 
two  or  three  years  of  its  adoption. 

In  the  presentation  and  ratification  of  these  amend- 
ments, the  advocates  of  a  specific  bill  of  rights,  and 
those  who  were  dissatisfied  with  the  strong  power  con- 
ferred on  the  Federal  government,  united;  and  many 
statesmen  who  leaned  to  a  strong  government  for 
the  nation  were  willing,  now  that  the  government 
was  established,  to  win  to  its  favor  those  who  dis- 
trusted it  by  the  adoption  of  these  amendments. 
Hence  a  very  slight  examination  of  them  shows  that 


FORMATION  OF  CONSTITUTION        99 

all  of  them  are  restrictions  upon  the  power  of  the 
general  government,  or  upon  the  modes  of  exercising 
that  power,  or  declarations  of  the  powers  remaining 
with  the  States  and  with  the  people.  They  establish 
certain  private  rights  of  persons  and  property  which 
the  general  government  may  not  violate.  As  regards 
these  last,  it  is  not  believed  that  any  acts  of  inten- 
tional oppression  by  the  government  of  the  United 
States  have  called  for  serious  reprehension;  but,  on 
the  contrary,  history  points  us  to  no  government  in 
which  the  freedom  of  the  citizen  and  the  rights  of 
property  have  been  better  protected  and  life  and 
liberty  more  firmly  secured. 

As  regards  the  question  of  the  relative  distribution 
of  the  powers  necessary  to  organized  society,  between 
the  Federal  and  State  governments,  more  will  be 
said  hereafter. 

As  soon  as  it  became  apparent  to  the  Convention 
that  the  new  government  must  be  a  nation  resting 
for  its  support  upon  the  people  over  whom  it  exer- 
cised authority,  and  not  a  league  of  independent 
States,  brought  together  under  a  compact  on  which 
each  State  should  place  its  own  construction,  the 
question  of  the  relative  power  of  those  States  in  the 
new  government  became  a  subject  of  serious  differ- 
ence. There  were  those  in  the  Convention  who  in- 
sisted that  in  the  legislative  body,  where  the  most  im- 
portant powers  must  necessarily  reside,  the  States 
should,  as  in  the  Articles  of  Confederation,  stand  up- 
on a  perfect  equality,  each  State  having  but  one  vote ; 
and  this  feature  was  finally  retained  in  that  part  of 
the  Constitution  which  vested  in  Congress  the  elec- 


100  SAMUEL  FREEMAN  MILLER 

tion  of  the  President,  when  there  should  be  a  failure 
to  elect  by  the  electoral  college  in  the  regular  mode 
prescribed  by  that  instrument. 

The  contest  in  the  Convention  became  narrowed  to 
the  composition  of  the  Senate,  after  it  had  been  de- 
termined that  the  legislature  should  consist  of  two 
distinct  bodies,  sitting  apart  from  each  other,  and 
voting  separately.  One  of  these  was  to  be  a  popular 
body,  elected  directly  by  the  people  at  short  intervals. 
The  other  was  to  be  a  body  more  limited  in  numbers, 
with  longer  terms  of  office ;  and  this,  with  the  manner 
of  their  appointment,  was  designed  to  give  stability 
to  the  policy  of  the  government,  and  to  be  in  some 
sense  a  restraint  upon  sudden  impulses  of  popular 
will. 

With  regard  to  the  popular  branch  of  the  legisla- 
ture, there  did  not  seem  to  be  much  difficulty  in  es- 
tablishing the  proposition,  that  in  some  general  way 
each  State  should  be  represented  in  it  in  proportion 
to  its  population,  and  that  each  member  of  the  body 
should  vote  with  equal  effect  on  all  questions  before 
it.  But  when  it  was  sought  by  the  larger  and  more 
populous  States,  as  Virginia,  Pennsylvania,  and  Mas- 
sachussetts,  to  apply  this  principle  to  the  composition 
of  the  Senate,  the  resistance  of  the  smaller  States 
became  stubborn,  and  they  refused  to  yield.  The 
feeling  arising  under  the  discussion  of  this  subject 
came  nearer  causing  the  disruption  of  the  Conven- 
tion than  any  which  agitated  its  deliberations.  It  was 
finally  settled  by  an  agreement  that  every  State,  how- 
ever small,  should  have  two  representatives  in  the 
Senate  of  the  United  States,  and  no  State  should 


FORMATION  OF  CONSTITUTION       101 

have  any  more;  and  that  no  amendmejatf *of  the  Con- 
stitution should  deprive  any  State  df  its;>e^uiI/sti£-: 
frage  in  the  Senate  without  its  consent.  As  the  Sen- 
ate has  the  same  power  in  enacting  laws  as  the  House 
of  Representatives,  and  as  each  State  has  its  two 
votes  in  that  body,  it  will  be  seen  that  the  smaller 
States  secured,  when  they  are  in  a  united  majority, 
the  practical  power  of  defeating  all  legislation  which 
was  unacceptable  to  them. 

"What  has  the  experience  of  a  century  taught  us  on 
this  question?  It  is  certainly  true  that  there  have 
been  many  expressions  of  dissatisfaction  with  the 
operation  of  a  principle  which  gives  to  each  of  the 
six  New  England  States,  situated  compactly  together, 
as  much  power  in  the  Senate  in  making  laws,  in  rati- 
fying treaties,  and  in  confirming  or  rejecting  ap- 
pointments to  office,  as  is  given  to  the  great  State  of 
New  York,  which,  both  in  population  and  wealth,  ex- 
ceeds all  the  New  England  States,  and  nearly  if  not 
quite  equals  them  in  territory. 

But  if  we  are  to  form  an  opinion  from  demonstra- 
tions against,  or  attempts  to  modify,  this  feature  of 
the  Constitution,  or  any  feature  which  concerns  ex- 
clusively the  functions  of  the  Senate,  we  shall  be 
compelled  to  say  that  the  ablest  of  our  public  men, 
and  the  wisdom  of  the  nation,  are  in  the  main  satis- 
fied with  the  work  of  the  Convention  on  this  point 
after  a  hundred  years  of  observation.  And  it  is  be- 
lieved that  the  existence  of  an  important  body  in  our 
system  of  government,  not  wholly  the  mere  represent- 
ative of  population,  has  exercised  a  wholesome  con- 
servatism on  many  occasions  in  our  history. 


102  SAMUEL  FREEMAN  MILLER 

" 4 """  \. c      o  V'  ^  t     c 

-  ^  Another  feature  of  the  Constitution  which  met 
with  earn£st^opposition  was  the  vesting  of  the  execu- 
tive power  in  a  single  magistrate.  While  Hamilton 
would  have  preferred  a  hereditary  monarch,  with 
strong  restriction  on  his  authority,  like  that  in  Eng- 
land, he  soon  saw  that  even  his  great  influence  could 
not  carry  the  Convention  with  him.  There  were  not 
a  few  members  who  preferred  in  that  matter  the  sys- 
tem of  a  single  body  (as  the  Congress)  in  which 
should  be  reposed  all  the  power  of  the  nation,  or  a 
council,  or  executive  committee,  appointed  by  that 
body  and  responsible  to  it.  There  were  others  who 
preferred  an  executive  council  of  several  members, 
not  owing  its  appointment  to  Congress. 

Our  ancient  ally, — the  French  nation, — following 
rapidly  in  our  footsteps,  abolished  the  monarchical 
form  of  government,  and  in  attempting  the  estab- 
lishment of  a  representative  republic,  has  found  the 
governments  so  established  up  to  the  present  time 
very  unstable  and  of  short  duration.  It  is  impossible 
for  an  American,  familiar  with  the  principles  of  his 
government  and  the  operation  of  its  Constitution,  to 
hesitate  to  attribute  these  failures  of  the  French  peo- 
ple very  largely  to  the  defects  in  their  various  con- 
stitutions in  points  where  they  have  differed  from 
ours.  Their  first  step,  upon  the  overthrow  of  the 
monarchy,  was  to  consolidate  into  one  the  three  rep- 
resentative estates  of  nobles,  clergy,  and  commons, 
which  had  always,  when  called  together  by  the  king, 
acted  separately.  After  a  little  experience  in  gov- 
erning by  committees,  this  body  selected  seven  of 
their  number,  called  the  directors,  to  whom  the  ex- 


FORMATION  OF  CONSTITUTION       103 

ecutive  powers  were  committed.  It  is  sufficient  to 
say  of  this  body  that,  though  tolerated  for  a  while 
as  an  improvement  on  Robespierre  and  his  Commit- 
tee of  Public  Safety,  it  was  easily  overturned  by 
Napoleon,  who  in  rapid  succession  established  an 
executive  of  three  consuls,  of  which  he  was  chief, 
then  of  consul  for  life  in  himself,  and  finally  the  em- 
pire, of  which  he  was  the  head,  and  was  at  the  same 
time  the  executive,  the  legislature,  and  the  fountain 
of  justice.  It  is  needless  to  recount  the  history  of  the 
second  republic  and  the  second  empire.  For  a  third 
time  France  now  has  a  republican  government.  This 
has  a  President,  a  Senate  and  a  House  of  Deputies, 
as  our  Constitution  has ;  but  its  President  is  a  cipher, 
elected  by  the  assembly  for  seven  years.  It  was  sup- 
posed that  the  length  of  the  term  would  give  stability 
to  the  government  and  efficiency  to  the  office.  It  has 
in  practice  turned  out  that  the  President  is  but  a 
public  show,  the  puppet  of  the  prevailing  faction  (it 
can  hardly  be  called  a  party)  in  the  House  of  Depu- 
ties. His  main  function — a  very  disagreeable  one — 
is  to  reconstruct  perpetually  dissolving  cabinets,  in 
which  he  has  no  influence,  and  whose  executive  policy 
is  controlled  by  the  deputies  on  whose  demand  they 
are  appointed,  all  of  them  acting  under  constantly 
impending  dread  of  a  Parisian  mob.  The  Senate  of 
this  system,  like  the  House  of  Lords  of  Great  Britain, 
is  without  any  actual  influence  on  the  government, 
and  is  unlike  our  Senate,  the  members  of  which  rep- 
resent States,  and  have  both  the  power  and  the 
courage,  when  they  deem  it  necessary,  to  resist  the 
President  or  the  House  of  Representatives  or  both. 


104          SAMUEL  FREEMAN  MILLER 

The  present  government  of  France  has  existed 
longer  than  any  republic  ever  set  up  in  that  country. 
The  sentiment  of  the  people  is  essentially  republican. 
The  strongest  sympathies,  the  ardent  wishes  of  every 
lover  of  liberty  and  of  republicanism  in  the  world, 
are  with  that  gallant  people;  and  commemorating,  as 
we  do  to-day,  the  events  of  a  hundred  years  ago, — 
the  successful  establishment  of  the  grandest  republic 
the  world  has  ever  known, — our  hearts,  filled  with 
grateful  remembrance  of  their  valuable  aid,  are  warm 
with  ardent  wishes  that  they  may  share  the  blessings 
we  enjoy. 

It  was  urged  against  our  Constitution  by  many 
liberty-loving  men,  both  in  the  Convention  and  out 
of  it,  that  it  conferred  upon  the  executive,  a  single 
individual,  whose  election  for  a  term  of  four  years 
was  carefully  removed  from  the  direct  vote  of  the 
people,  powers  dangerous  to  the  existence  of  free 
government.  It  was  said  that  with  the  appointment 
of  all  the  officers  of  the  government,  civil  and  mili- 
tary, the  sword  and  the  purse  of  the  nation  in  his 
hands,  the  power  to  prevent  the  enactment  of  laws 
to  which  he  did  not  assent, — unless  they  could  be 
passed  over  his  objection  by  a  vote  of  two-thirds  in 
each  of  the  two  legislative  houses, — and  the  actual 
use  of  this  power  for  four  years  without  interruption, 
an  ambitious  man,  of  great  personal  popularity  could 
establish  his  power  during  his  own  life  and  transmit 
it  to  his  family  as  a  perpetual  dynasty. 

Perhaps  of  all  objections  made  to  important  fea- 
tures of  the  Constitution  this  one  had  more  plausi- 
bility, and  was  urged  with  most  force.  But  if  the 


FORMATION  OF   CONSTITUTION       105 

century  of  our  experience  has  demonstrated  anything, 
it  is  the  fallacy  of  this  objection  and  of  all  the  rea- 
sons urged  in  its  support. 

The  objection  that  the  electoral  college  was  a  con- 
trivance to  remove  the  appointment  of  the  President 
from  the  control  of  popular  suffrage,  was,  if  it  had 
any  merit,  speedily  overcome  without  any  infraction 
of  the  Constitution  by  the  democratic  tendencies  of 
the  people.  The  electors  composing  the  college,  who 
it  was  supposed  would  each  exercise  an  independent 
judgment  in  casting  his  vote  for  President,  soon 
came  to  be  elected  themselves  on  distinct  pledges, 
made  beforehand,  that  they  would  vote  for  some  per- 
son designated  as  a  popular  favorite  for  that  office. 
So  that  at  the  present  time  the  electors  of  each  State, 
in  sending  to  the  capital  their  votes  for  President,  do 
but  record  the  instruction  of  a  majority  of  the  citi- 
zens voting  in  the  State.  The  term  of  four  years  for 
the  Presidential  office  is  not  now  deemed  too  long  by 
any  one,  while  there  are  many  who  would  desire  that 
it  should  be  made  longer,  say  seven  or  ten  years. 

The  power  of  appointment  to  office  requires  the 
consent  of  the  Senate  to  its  exercise;  and  that  body 
has  asserted  its  right  of  refusing  that  assent  so  cour- 
ageously and  so  freely,  that  there  can  be  no  real  fear 
of  its  successful  use  by  the  President  in  a  manner  to 
endanger  the  liberty  of  the  country,  unless  the  Sen- 
ate itself  shall  be  utterly  corrupted.  Nor  can  the 
means  for  such  corruption  be  obtained  from  the  pub- 
lic treasury  until  Congress  in  both  branches  shall  be- 
come so  degenerate  as  to  consent  to  such  use. 

Nor  have  we  had  in  this  country  any  want  of  am- 


106  SAMUEL  FREEMAN  MILLER 

bilious  men,  who  have  earnestly  desired  the  Presi- 
dency, or,  having  it  once,  have  longed  for  a  continua- 
tion of  it  at  the  end  of  the  lawful  term.  And  it  may 
be  said  that  it  is  almost  a  custom  when  a  President 
has  filled  his  office  for  one  term  acceptably,  that  he 
is  to  be  reflected,  if  his  political  party  continues  to 
be  a  popular  majority.  Our  people  have  also  shown 
the  usual  hero  worship  of  successful  military  chief- 
tains, and  rewarded  them  by  election  to  the  Presi- 
dency. In  proof  of  this  it  is  only  necessary  to  men- 
tion the  names  of  Washington,  Jackson,  Harrison, 
Taylor,  and  Grant.  In  some  of  them  there  has  been 
no  want  of  ambition,  nor  of  the  domineering  disposi- 
tion, which  is  often  engendered  by  the  use  of  military 
power.  Yet  none  of  these  men  have  had  more  than 
two  terms  of  the  office.  And  though  a  few  years  ago 
one  of  the  most  largely  circulated  newspapers  of  the 
United  States  wrote  in  its  paper  day  after  day  ar- 
ticles headed  * l  Caesarism, ' '  charging  danger  to  the 
republic  from  one  of  its  greatest  benefactors  and 
military  chiefs,  it  excited  no  attention  but  derision, 
and  deserved  no  other. 

There  is  no  danger  in  this  country  from  the  power 
reposed  in  the  Presidential  office.  There  is,  as  sad 
experience  shows,  far,  far  more  danger  from  nihilism 
and  assassination,  than  from  ambition  in  our  public 
servants. 

So  far  have  the  incumbents  of  the  Presidency,  dur- 
ing the  hundred  years  of  its  history,  been  from  grasp- 
ing, or  attempting  to  grasp,  powers  not  warranted  by 
the  Constitution,  and  so  far  from  exercising  the  ad- 
mitted power  of  that  office  in  a  despotic  manner,  a 


FORMATION  OP  CONSTITUTION       107 

candid  student  of  our  political  history  during  that 
time  cannot  fail  to  perceive  that  no  one  of  the  three 
great  departments  of  the  government — the  legisla- 
tive, the  executive,  and  the  judicial — has  been  more 
shorn  of  its  just  powers,  or  crippled  in  the  exercise 
of  them,  than  the  Presidency. 

In  regard  to  the  function  of  appointment  to  office, 
— perhaps  the  most  important  of  the  executive  du- 
ties,— the  spirit  of  the  Constitution  requires  that  the 
President  shall  exercise  freely  his  best  judgment  and 
follow  its  most  sincere  conviction  in  selecting  proper 
men. 

It  is  undeniable  that  for  many  years  past,  by  the 
gradual  growth  of  custom,  it  has  come  to  pass  that 
in  the  nomination  of  officers  by  the  President,  he  has 
so  far  submitted  to  be  governed  by  the  wishes  and 
recommendations  of  interested  members  of  the  two 
houses  of  Congress,  that  the  purpose  of  the  Constitu- 
tion in  vesting  this  power  in  him,  and  the  right  of 
the  public  to  hold  him  personally  responsible  for  each 
and  every  appointment  he  makes,  is  largely  defeated. 
In  other  words,  the  great  principle  lying  at  the  foun- 
dation of  all  free  governments,  that  the  legislative 
and  executive  departments  shall  be  kept  separate,  is 
invaded  by  the  participation  of  members  of  Con- 
gress in  the  exercise  of  the  appointing  power. 

History  teaches  us,  in  no  mistaken  language,  how 
often  customs  and  practices,  which  were  originated 
without  lawful  warrant,  and  opposed  to  the  sound 
construction  of  the  law,  have  come  to  overload  and 
pervert  it,  as  commentators  on  the  text  of  Holy  Scrip- 
ture have  established  doctrines  wholly  at  variance 
with  its  true  spirit. 


108  SAMUEL  FREEMAN  MILLER 

Without  considering  many  minor  objections  made 
to  the  Constitution  during  the  process  of  its  forma- 
tion and  adoption,  let  us  proceed  to  that  one  which 
was  the  central  point  of  contest  then,  and  which, 
transferred  to  the  question  of  construing  that  instru- 
ment, has  continued  to  divide  statesmen  and  poli- 
ticians to  the  present  time. 

The  Convention  was  divided  in  opinion  between 
those  who  desired  a  strong  national  government, 
capable  of  sustaining  itself  by  the  exercise  of  suita- 
ble powers,  and  invested  by  the  Constitution  with 
such  powers,  and  those  who,  regarding  the  Articles 
of  Confederation  as  a  basis,  proposed  to  strengthen 
the  general  government  in  a  very  few  particulars, 
leaving  it  chiefly  dependent  on  the  action  of  the 
States  themselves  for  its  support  and  for  the  enforce- 
ment of  its  laws. 

Let  us  deal  tenderly  with  the  Articles  of  Confed- 
eration. We  should  here,  on  this  glorious  anniver- 
sary, feel  grateful  for  any  instrumentality  which 
helped  us  in  the  days  of  our  earliest  struggle.  Very 
few  are  now  found  to  say  anything  for  these  Articles, 
yet  they  constituted  the  nominal  bond  which  held  the 
States  together  during  the  War  of  Independence.  It 
must  be  confessed  that  the  sense  of  a  common  cause 
and  a  common  danger  probably  did  more  to  produce 
this  united  effort  than  any  other  motives.  But  the 
Articles  served  their  purpose  for  the  occasion ;  and 
though,  when  the  pressure  of  imminent  danger  was 
removed,  they  were  soon  discovered  to  be  a  rope  of 
sand,  let  them  rest  in  a  peaceful,  honorable  remem- 
brance. 


FORMATION  OF  CONSTITUTION       109 

Between  those  who  favored  a  strong  government 
of  the  Union  and  those  who  were  willing  to  grant  it 
but  little  power  at  the  expense  of  the  States  there 
were  various  shades  of  opinion;  and  while  it  was  the 
prevailing  sentiment  of  the  Convention  that  "the 
greatest  interest  of  every  true  American  was  the  con- 
solidation of  the  Union/'  there  were  many  who  were 
unwilling  to  attain  this  object  by  detaching  the  nec- 
essary powers  from  the  States,  and  conferring  them 
on  the  national  government. 

These  divergent  views  had  their  effect,  both  in  the 
Constitutional  Convention  and  in  those  held  for  its 
ratification.  Around  this  central  point  the  conten- 
tion raged;  and  it  was  only  by  compromises  and  con- 
cessions, dictated  by  the  necessity  of  each  yielding 
something  for  the  common  good, — so  touchingly  men- 
tioned in  the  letter  of  the  Convention  to  Congress, — 
that  the  result  was  finalty  reached.  The  patriotism 
and  the  love  of  liberty  of  each  party  were  undisputed. 
The  anxiety  for  a  government  which  would  best 
reconcile  the  possession  of  powers  essential  to  the 
State  governments  with  those  necessary  to  the  exist- 
ence and  efficiency  of  the  government  of  the  Union 
was  equal,  and  the  long  struggle  since  the  adoption 
of  the  Constitution  on  the  same  line  of  thought,  in  its 
construction,  shows  how  firmly  these  different  views 
were  imbedded  in  our  political  theories. 

The  party  which  came  to  be  called  the  party  of 
State  Rights  has  always  dreaded  that  the  alleged 
supremacy  of  the  national  power  would  overthrow 
the  State  governments,  or  control  them  to  an  extent 
incompatible  with  any  useful  existence.  Their  oppo- 


110  SAMUEL  FREEMAN  MILLER 

nents  have  been  equally  confident  that  powers  essen- 
tial to  the  successful  conduct  of  the  general  govern- 
ment, which  either  expressly  or  by  implication  are 
conferred  on  it  by  the  Constitution,  were  denied  to  it 
by  the  principles  of  the  State  Rights  party.  The  one 
believed  in  danger  to  the  States,  from  the  theory 
which  construed  with  a  free  and  liberal  rule  the 
grants  of  power  to  the  general  government,  and  the 
other  believed  that  such  a  construction  of  the  Con- 
stitution was  consistent  with  the  purpose  and  spirit 
of  that  instrument,  and  essential  to  the  perpetuity 
of  the  nation. 

If  experience  can  teach  anything  on  the  subject  of 
theories  of  government,  the  late  civil  war  teaches  un- 
mistakably that  those  who  believed  the  source  of  dan- 
ger to  be  in  the  strong  powers  of  the  Federal  gov- 
ernment were  in  error,  and  that  those  who  believed 
that  such  powers  were  necessary  to  its  safe  conduct 
and  continued  existence  were  in  the  right.  The  at- 
tempted destruction  of  the  Union  by  eleven  States, 
which  were  part  of  it,  and  the  apparent  temporary 
success  of  the  effort,  was  undoubtedly  due  to  the 
capacity  of  the  States  under  the  Constitution  for 
concerted  action,  by  organized  movements,  with  all 
the  machinery  ready  at  hand  to  raise  armies  and  es- 
tablish a  central  government.  And  the  ultimate  fail- 
ure of  the  attempt  is  to  be  attributed  with  equal 
clearness  to  the  exercise  of  those  powers  of  the  gen- 
eral government,  under  the  Constitution,  which  were 
denied  to  it  by  extreme  advocates  of  State  Rights. 
And  that  this  might  no  longer  be  matter  of  dispute, 
three  new  amendments  to  the  Constitution  were 


FORMATION  OF  CONSTITUTION       HI 

adopted  at  the  close  of  that  struggle,  which,  while 
keeping  in  view  the  principles  of  our  complex  form  of 
State  and  Federal  government,  and  seeking  to  dis- 
turb the  distribution  of  powers  among  them  as  little 
as  was  consistent  with  the  wisdom  acquired  by  a  sor- 
rowful experience,  these  amendments  confer  addi- 
tional powers  on  the  government  of  the  Union,  and 
place  additional  restraints  upon  those  of  the  States. 
May  it  be  long  before  such  an  awful  lesson  is  again 
needed  to  decide  upon  disputed  questions  of  consti- 
tutional law. 

It  is  not  out  of  place  to  remark  that  while  the  pen- 
dulum of  public  opinion  has  swung  with  much  force 
away  from  the  extreme  point  of  State  Rights  doctrine, 
there  may  be  danger  of  its  reaching  an  extreme  point 
on  the  other  side.  In  my  opinion,  the  just  and  equal 
observance  of  the  rights  of  the  States,  and  of  the 
general  government,  as  defined  by  the  present  Con- 
stitution, is  as  necessary  to  the  permanent  prosperity 
of  our  country,  and  to  its  existence  for  another  cen- 
tury, as  it  has  been  for  the  one  whose  close  we  are 
now  celebrating. 

Having  considered  the  objections  originally  made 
to  this  great  work,  in  the  light  of  its  operation  for  a 
century,  what  shall  we  say  of  it  in  regard  to  those 
great  features  which  were  more  generally  acceptable? 
The  doctrine  of  Montesquieu,  then  in  the  height  of 
his  fame,  that  the  powers  essential  to  all  governments 
should  be  distributed  among  three  separate  bodies  of 
magistracy, — namely,  legislative,  executive,  and  judi- 
cial,— was,  as  Madison  affirms  in  number  xlvii.  of  the 
"Federalist,"  recognized  by  the  Convention  as  the 


112  SAMUEL  FREEMAN  MILLER 

foundation  of  its  labors.  The  apparent  departure 
from  that  principle  in  making  the  Senate  a  partici- 
pant in  the  exercise  of  the  appointing  power,  and 
the  treaty-making  power,  works  well,  because  the 
initiative  remains  with  the  executive.  The  power  of 
that  body  to  try  impeachments  of  public  officers  for 
high  crimes  and  misdemeanors, — a  function  essen- 
tially judicial,  while  it  has  not  produced  any  sub- 
stantial injury, — has,  perhaps,  operated  as  a  safety- 
valve  in  cases  of  great  popular  excitement.  As  an 
efficient  remedy,  it  must  be  conceded  to  be  a  failure. 

But  the  harmony  and  success  with  which  the  three 
great  subdivisions  of  the  organized  government  of 
the  Constitution  have  cooperated  in  the  growth,  pros- 
perity, and  happiness  of  this  great  people,  constitute 
the  strongest  argument  in  favor  of  the  organic  law, 
which  governs  them  all.  It  is  the  first  successful  at- 
tempt, in  the  history  of  the  world,  to  lay  the  deep  and 
broad  foundations  of  a  government  for  millions  of 
people  and  an  unlimited  territory  in  a  single  written 
instrument,  framed  and  adopted  in  one  great  national 
effort. 

This  instrument  comes  nearer  than  any  of  political 
origin  to  Rousseau's  idea  of  a  society  founded  on  a 
social  contract.  In  its  formation,  States  and  individ- 
uals, in  the  possession  of  equal  rights, — the  rights  of 
human  nature  common  to  all, — met  together  and  de- 
liberately agreed  to  give  up  certain  of  those  rights  to 
government  for  the  better  security  of  others;  and 
that  there  might  be  no  mistake  about  this  agreement, 
it  was  reduced  to  writing,  with  all  the  solemnities 
which  give  sanction  to  the  pledges  of  mankind. 


FORMATION  OF  CONSTITUTION       113 

Other  nations  speak  of  their  constitutions,  which 
are  the  growth  of  centuries  of  government,  and  the 
maxims  of  experience,  and  the  traditions  of  ages; 
many  of  them  deserve  the  veneration  which  they  re- 
ceive. But  a  constitution,  in  the  American  sense  of 
the  word,  as  accepted  in  all  the  States  of  North  and 
South  America,  means  an  instrument  in  writing,  de- 
fining the  powers  of  government,  and  distributing 
those  powers  among  different  bodies  of  magistrates 
for  their  more  judicious  exercise.  The  Constitution 
of  the  United  States  not  only  did  this  as  regards  a 
national  government,  but  it  established  a  federation 
of  many  States  by  the  same  instrument,  in  which  the 
usual  fatal  defects  in  such  unions  have  been  corrected, 
with  such  felicity  that  during  the  hundred  years  of 
its  existence  the  union  of  the  States  has  grown 
stronger,  and  has  received  within  that  Union  other 
States  exceeding  in  number  those  of  the  original  fed- 
eration. 

It  is  not  only  the  first  important  written  consti- 
tution found  in  history,  but  it  is  the  first  one  which 
contained  the  principles  necessary  to  the  successful 
confederation  of  numerous  powerful  States.  I  do  not 
forget,  nor  do  I  mean  to  disparage,  our  sister,  the 
federal  republic  of  Switzerland.  But  her  contin- 
uance as  an  independent  power  in  Europe  is  so 
largely  due  to  her  compact  territory,  her  inaccessible 
mountains,  her  knowledge  of  the  necessity  of  union 
to  safety,  and  the  policy  of  her  powerful  neighbors, 
which  demands  of  each  other  the  recognition  of  her 
rights,  that  she  hardly  forms  an  exception.  But 
Switzerland  stands  to-day — may  she  ever  stand — as. 

8 


114  SAMUEL  FREEMAN  MILLER 

the  oldest  witness  to  the  capacity  of  a  republican  fed- 
eration of  States  for  sound  government,  for  the  se- 
curity of  freedom,  and  resistance  to  disintegrating 
tendencies.  But  when  we  look  to  the  results  of  con- 
federation in  the  Olympic  Council,  and  the  Achaian 
League  of  ancient  history,  and  in  modern  times  to 
the  States  of  Holland  and  the  old  German  empire, 
we  must  admit  that  the  United  States  presents  the 
most  remarkable,  if  not  the  only  successful,  happy, 
and  prosperous,  federated  government  of  the  world. 

Let  us  consider  for  a  moment  the  evidence  of  this. 
When  the  Constitution  was  finally  ratified,  and 
Rhode  Island  also  accepted  it,  the  government  was 
composed  of  thirteen  States.  It  now  numbers  thirty- 
eight.  The  inhabited  area  of  those  States  was  found 
between  the  Alleghany  Mountains  and  the  Atlantic 
Ocean,  a  region  which,  when  we  now  look  over  a  map 
of  the  United  States,  seems  to  be  but  the  eastern 
border  of  the  great  republic.  Its  area  now  includes 
all  the  territory  between  the  Atlantic  and  Pacific 
Oceans, — a  distance  of  over  three  thousand  miles 
east  and  west, — and  between  the  St.  Lawrence  and 
the  great  lakes  on  the  north  and  the  Gulf  and  States 
of  Mexico  on  the  south.  Besides  these  thirty-eight 
States,  the  remainder  of  this  immense  region  is  di- 
vided into  eight  Territories,  with  an  organized  gov- 
ernment in  each,  several  of  which  are  ready  to  be 
admitted  into  the  Union  as  States,  under  a  provision 
of  the  Constitution  on  that  subject,  and  in  accord- 
ance with  the  settled  policy  of  the  nation. 

The  thirteen  States  which  originally  organized  this 
government  had  a  population  believed  to  be,  in  round 


FORMATION  OF  CONSTITUTION       H5 

numbers,  three  millions,  many  of  whom  were  slaves. 
To-day  it  seems  probable  that  sixty  millions  are  em- 
braced in  the  United  States,  in  which  there  breathes 
no  soul  who  owns  any  man  master. 

I  have  already  suggested  the  impoverished  condi- 
tion of  the  country  at  the  close  of  the  Revolutionary 
War.  To-day  I  do  not  hesitate  to  make  the  assertion, 
that  if  you  count  only  that  which  is  real  wealth,  and 
not  accumulated  capital  in  the  shape  of  evidences  of 
debt, — which  is  but  a  burden  upon  such  property, — 
I  mean  if  you  count  lands  and  houses  and  furniture 
and  horses  and  cattle  and  jewels, — all  that  is  tangi- 
ble and  contributes  to  the  comfort  and  pleasure  of 
life, — the  United  States  to-day  is  the  wealthiest  coun- 
try upon  the  face  of  the  globe,  and  is  the  only  great 
government  which  is  so  rapidly  paying  off  its  national 
debt  that  it  is  begging  its  creditors  to  accept  their 
money  not  yet  due,  with  a  reasonable  rebate  for  in- 
terest. 

Under  the  government  established  by  this  Consti- 
tution we  have,  in  the  century  which  we  are  now 
overlooking,  had  three  important  wars,  such  as  are 
always  accompanied  by  hazardous  shocks  to  all  gov- 
ernments. In  the  first  of  these  we  encountered  the 
British  empire,  the  most  powerful  nation  then  on  the 
globe, — a  nation  which  had  successfully  resisted  Na- 
poleon, with  all  the  power  of  Europe  at  his  back.  If 
we  did  not  attain  all  we  fought  for  in  that  contest, 
we  displayed  an  energy  and  courage  which  com- 
manded for  us  an  honorable  stand  among  the  nations 
of  the  earth. 

In  the  second, — the  war  with  Mexico, — while  our 


116  SAMUEL  FREEMAN  MILLER 

reputation  as  a  warlike  people  suffered  no  diminu- 
tion, we  made  large  accessions  of  valuable  territory, 
out  of  which  States  have  been  since  made  members 
of  the  Union. 

The  last  war, — the  recent  civil  war, — in  the  num- 
ber of  men  engaged  in  it,  in  the  capacity  of  the 
weapons  and  instruments  of  destruction  brought  into 
operation,  and  in  the  importance  of  the  result  to 
humanity  at  large,  must  be  esteemed  the  greatest 
war  that  the  history  of  the  world  presents.  It  was 
brought  about  by  the  attempt  of  eleven  of  the  States 
to  destroy  the  Union.  This  was  resisted  by  the  gov- 
ernment of  that  Union  under  the  powers  granted  to 
it  by  the  Constitution.  Its  results  were  the  emanci- 
pation of  three  millions  of  slaves,  the  suppression  of 
the  attempt  to  dissever  the  Union,  the  resumption  of 
an  accelerated  march  in  the  growth,  prosperity,  and 
happiness  of  this  country.  It  also  taught  the  lesson 
of  the  indestructibility  of  the  Union,  of  the  wisdom 
of  the  principles  on  which  it  is  founded,  and  it  aston- 
ished the  nations  of  the  world,  and  inspired  them 
with  a  respect  which  they  had  never  before  enter- 
tained for  our  country. 

I  venture  to  hope  that  with  the  earnest  gaze  of  the 
wisest  and  ablest  minds  of  the  age  turned  with  pro- 
found interest  to  the  experiment  of  the  federative 
system,  under  our  American  Constitution,  it  may  sug- 
gest something  to  relieve  the  nations  of  Europe  from 
burdens  so  heavy  that  if  not  soon  removed  they  must 
crush  the  social  fabric.  Those  great  nations  cannot 
go  on  forever  adding  millions  upon  millions  to  their 
public  debts,  mainly  for  the  support  of  permanent 


FORMATION  OF  CONSTITUTION       117 

standing  armies,  while  those  armies  make  such  heavy 
drafts  upon  the  able-bodied  men  whose  productive 
industry  is  necessary  to  the  support  of  the  people 
and  of  the  government. 

I  need  not  dwell  on  this  unpleasant  subject  further 
than  to  say  that  these  standing  armies  are  rendered 
necessary  by  the  perpetual  dread  of  war  with  neigh- 
boring nations. 

In  the  principles  of  our  Constitution,  by  which  the 
autonomy  and  domestic  government  of  each  State 
are  preserved,  while  the  supremacy  of  the  general 
government  at  once  forbids  wars  between  the  States, 
and  enables  it  to  enforce  peace  among  them,  we  may 
discern  the  elements  of  political  forces  sufficient  for 
the  rescue  of  European  civilization  from  this  great 
disaster. 

Do  I  claim  for  the  Constitution,  whose  creation  we 
celebrate  to-day,  the  sole  merit  of  the  wonderful  epit- 
ome which  I  have  presented  to  you  of  the  progress 
of  this  country  to  greatness,  to  prosperity,  to  happi- 
ness, and  honor?  Nay,  I  do  not;  though  language 
used  by  men  of  powerful  intellect  and  great  knowl- 
edge of  history  might  be  my  justification  if  I  did. 

Mr.  Bancroft,  the  venerable  historian,  who  has  de- 
voted a  long  and  laborious  life  to  a  history  of  his 
country,  that  is  a  monument  to  his  genius  and  his 
learning,  says  of  the  closing  hours  of  the  Convention : 
"The  members  were  awe-struck  at  the  result  of  their 
councils;  the  Constitution  was  a  nobler  work  than 
any  one  of  them  believed  possible  to  devise/*  And 
he  prefaces  the  volume  of  his  invaluable  history  of 
the  formation  of  the  Constitution  with  a  sentiment 


118  SAMUEL  FREEMAN  MILLER 

of  Mr.  Gladstone,  the  greatest  living  statesman  of 
England.  He  says:  "As  the  British  constitution  is 
the  most  subtile  organism  which  has  proceeded  from 
progressive  history,  so  the  American  Constitution  is 
the  most  wonderful  work  ever  struck  off  at  a  given 
time  by  the  brain  and  purpose  of  man." 

And  while  I  heartily  endorse  this,  and  feel  it  im- 
possible to  find  language  in  which  to  express  my  ad- 
miration and  my  love  for  the  Constitution  of  the 
United  States,  and  my  profound  belief  that  the  wis- 
dom of  man,  unaided  by  inspiration,  has  produced  no 
writing  so  valuable  to  humanity,  I  should  fail  of  a 
most  important  duty  if  I  did  not  say  on  this  public 
occasion,  that  no  amount  of  wisdom  in  a  constitution 
can  produce  wise  government  unless  there  is  a  suita- 
ble response  in  the  spirit  of  the  people. 

The  Anglo-Saxon  race,  from  whom  we  inherit  so 
much  that  is  valuable  in  our  character,  as  well  as  our 
institutions,  has  been  remarkable  in  all  its  history  for 
a  love  of  law  and  order.  While  other  peoples,  equally 
cultivated,  have  paid  their  devotion  to  the  man  in 
power,  as  representative  of  the  law  which  he  enforces, 
the  English  people,  and  we,  their  descendents,  have 
venerated  the  law  itself,  looking  past  its  administra- 
tors, and  giving  our  allegiance  and  our  obedience  to 
the  principles  which  govern  organized  society.  It 
has  been  said  that  a  dozen  Englishmen  or  Americans, 
thrown  on  an  uninhabited  island,  would  at  once  pro- 
ceed to  adopt  a  code  of  laws  for  their  government, 
and  elect  the  officers  who  were  to  enforce  them.  And 
certainly  this  proposition  is  borne  out  by  the  early 
history  of  our  emigrants  to  California,  where  every 


FORMATION  OF  CONSTITUTION       119 

mining  camp  organized  into  a  political  body,  and 
made  laws  for  its  own  government,  which  were  so 
good  that  Congress  adopted  them  until  they  should  be 
repealed  or  modified  by  statute. 

I  but  repeat  the  language  of  the  Supreme  Court 
of  the  United  States  when  I  say  that  in  this  country 
the  law  is  supreme.  No  man  is  so  high  as  to  be  above 
the  law.  No  officer  of  the  government  may  disre- 
gard it  with  impunity.  To  this  inborn  and  native 
regard  for  law,  as  a  governing  power,  we  are  indebt- 
ed largely  for  the  wonderful  success  and  prosperity 
of  our  people,  for  the  security  of  our  rights;  and 
when  the  highest  law  to  which  we  pay  this  homage 
is  the  Constitution  of  the  United  States,  the  history 
of  the  world  has  presented  no  such  wonder  of  a  pros- 
perous, happy,  civil  government. 

Let  me  urge  upon  my  fellow-countrymen,  and  espe- 
cially upon  the  rising  generation  of  them,  to  examine 
with  careful  scrutiny  all  new  theories  of  government 
and  of  social  life,  and  if  they  do  not  rest  upon  a 
foundation  of  veneration  and  respect  for  law  as  the 
Bond  of  social  existence,  let  him  distrust  them  as  in- 
imical to  human  happiness. 

And  now  let  me  close  this  address  with  a  quotation 
from  one  of  the  ablest  jurists  and  most  profound 
commentators  upon  our  laws, — Chancellor  Kent.  He 
said,  fifty  years  ago :  ' '  The  government  of  the  United 
States  was  created  by  the  free  voice  and  joint  will  of 
the  people  of  America  for  their  common  defence  and 
general  welfare.  Its  powers  apply  to  those  great  in- 
terests which  relate  to  this  country  in  its  national 
capacity,  and  which  depend  for  their  stability  and 


120  SAMUEL  FREEMAN  MILLER 

protection  on  the  consolidation  of  the  Union.  It  is 
clothed  with  the  principal  attributes  of  sovereignty, 
and  it  is  justly  deemed  the  guardian  of  our  best 
rights,  the  source  of  our  highest  civil  and  political 
duties,  and  the  sure  means  of  our  national  greatness. ' ' 


APPENDIX   B 


APPENDIX  B 

THE  USE  AND  VALUE  OF  AUTHORITIES  IN 

THE  ARGUMENT  OF  CASES  BEFORE  THE 

COURTS  AND  IN  THE  DECISION  OF 

CASES  BY  THE  COURTS1 

I  have  selected  for  the  subject  of  my  discourse  on 
this  occasion  a  topic,  which,  as  far  as  I  know,  has 
escaped  the  attention  of  essayists  and  bookmakers  on 
the  law.  It  is,  the  use  and  value  of  authorities  in  the 
argument  of  cases  before  the  courts,  and  in  the  de- 
cision of  cases  by  the  courts. 

In  saying  that  this  subject  has  escaped  the  atten- 
tion of  the  modern  text  writer,  I  may  be  mistaken, 
but  if  there  be  any  such  work  it  is  unknown  to  me. 
This  is  rather  remarkable,  considering  that  the  whole 
field  of  the  law  has  been  explored  with  great  indus- 
try by  recent  writers  of  books,  mainly  at  the  instance 
of  law  publishers.  In  truth,  nearly  all  the  later 
works  of  that  class  have  been  written  at  the  sugges- 
tion of  the  book  publisher  for  a  compensation,  and 
not  because  the  writer  is  impressed  with  the  value  or 


1  Delivered  by  Justice  Samuel  F.  Miller  as  an  introductory 
address  before  the  Law  Department  of  the  University  of 
Pennsylvania,  Monday,  October  1,  1888,  and  printed  in  Penn- 
sylvania State  Reports,  Vol.  CXXI,  p.  xix. 


124  SAMUEL  FREEMAN  MILLER 

importance  of  the  subject  that  he  writes  about,  or  be- 
cause he  is  filled  with  the  knowledge  and  the  inspira- 
tion necessary  to  the  production  of  such  a  work.  Most 
of  these  modern  treatises,  as  they  profess  to  call  them- 
selves, are  but  digests  of  the  decisions  of  the  courts, 
and  though  professing  to  be  classified  and  arranged  in 
reference  to  certain  principles  discussed  in  the  book, 
they  are  generally  but  ill-considered  extracts  from 
the  decisions  of  the  courts  on  the  subjects  treated  of. 
It  is  time  that  it  was  understood  that  this  field  of 
literary  labor  has  been  overworked,  and  that  the  pub- 
lic, at  least  the  professional  public,  is  tired  of  the 
endless  production  of  books  not  needed  and  of  little 
value. 

I  say,  therefore,  that  it  is  remarkable  that  no  book 
has  been  written,  or  none  that  I  have  seen,  distinc- 
tively devoted  to  the  topic  which  I  have  suggested. 
Indeed,  the  sources  of  such  a  work  are  not  ample, 
and  are  difficult  to  come  at.  There  are  no  statutes 
regulating  the  extent  to  which  authorities  other  than 
statutes  are  to  be  relied  on,  or  the  force  to  be  given 
to  them  in  the  decisions  of  the  courts,  though  some 
of  the  states,  as  for  example  Virginia  and  Kentucky, 
forbade,  by  an  act  of  the  legislature  long  since  re- 
pealed, a  reference  in  court  to  cases  decided  before 
4  James  I.  The  effect  of  these  authorities  in  the 
courts  themselves  is  not  governed  by  any  fixed  rules, 
and  the  recognition  of  their  force  in  determining  the 
decision  of  cases  pending,  is  mainly  to  be  found  in 
casual  remarks  in  the  opinions  of  judges  in  announc- 
ing their  decisions,  and  these  remarks  are  not  always 
consistent  or  very  forcible. 


VALUE  OF  AUTHORITIES  125 

The  term  "authorities,"  as  used  in  the  courts  and 
by  counsel,  is  perhaps  generally  held  to  include  trea- 
tises by  text  writers  of  eminent  authority,  and  the 
word  is  undoubtedly  used  with  propriety  for  such 
books  as  Blackstone's  Commentaries,  Story's  Equity 
Jurisprudence,  Greenleaf  on  Evidence,  and  many 
others  of  like  standing  and  ability.  But  in  the  con- 
sideration to  which  I  invite  your  attention  at  this 
time  I  propose  to  limit  myself  to  the  authority  of  ad- 
judged cases.  This  subject  presents  itself  in  so  many 
shapes,  each  of  which  is  subject  to  a  different  treat- 
ment, that  it  is  difficult  to  classify  or  arrange  the 
manner  in  which  it  should  be  treated. 

First,  perhaps  we  should  consider  the  influence 
which  they  legitimately  ought  to  exercise  in  a  court 
to  whose  attention  they  are  brought  in  some  case  on 
hearing.  This  obviously  depends,  in  the  first  place, 
upon  the  closeness  of  the  analogy  of  the  case  cited  or 
produced  to  the  one  which  the  court  has  before  it, 
and,  while  the  identity  of  the  cases  themselves  or  of 
the  facts  or  pleadings  in  them,  adds  to  the  value  of 
the  decision  cited,  it  is  clear,  upon  very  slight  re- 
flection, that  the  identity  of  the  principle  decided, 
which  is  the  main  thing  to  be  considered,  may  be  very 
close,  while  the  facts  or  the  pleadings  of  the  two  cases 
may  be  variant  in  many  particulars.  As  to  the  ap- 
plicability of  the  decision  cited  to  the  case  in  hand,  a 
court  is  bound  to  examine  carefully  into  all  the  cir- 
cumstances under  which  the  former  decision  was 
made,  and  to  discover  from  this  and  from  the  opin- 
ion of  the  court,  how  far  it  was  intended  to  decide 
the  principle  for  which  it  is  quoted.  This  can  only 


126  SAMUEL  FREEMAN  MILLER 

be  done  by  the  court  to  whom  the  case  is  cited  plac- 
ing itself  as  nearly  as  possible  in  the  position  of  the 
court  which  made  the  decision. 

The  most  important  point  with  the  court,  there- 
fore, is  to  determine  exactly  what  the  first  court  did 
decide  in  reference  to  the  matter  in  issue  at  the  pres- 
ent hearing.  In  regard  to  this  arises  the  question  of 
obiter  dicta,  a  phrase  applied  to  principles  stated  in 
the  opinion  of  a  court  which  are  not  necessary  to  the 
decision  of  the  case,  and  which  is  often  applied  to 
matters  of  argument,  only  remotely  connected  with 
the  matter  in  hand.  In  other  words,  they  are  those 
observations  thrown  out  by  a  court  in  delivering  its 
opinion,  which,  though  in  themselves  valuable  as  a 
statement  of  principles,  and  often  sound  principles, 
were  not  involved  in  the  case  before  it,  and  therefore 
are  to  be  treated  merely  as  the  suggestion  of  the  judge 
and  not  as  the  decision  of  the  court. 

Very  much  of  what  is  presented  to  a  court  as  au- 
thority in  the  hearing  of  a  case  is  of  this  character, 
and  while  it  is  not  decisive,  and  does  not  carry  the 
weight  of  a  direct  decision  of  the  court  in  the  case, 
it  cannot  be  said  to  be  wholly  useless  when  the  obser- 
vations proceed  from  a  distinguished  judge  of  high 
authority,  and  whose  opinions  are  entitled  to  respect. 
But  as  the  main  value  of  former  decisions  as  prec- 
edents consists  in  the  fact  that  they  are  the  judg- 
ments of  a  court  of  competent  jurisdiction  and  re- 
spectability, of  course  the  observations,  however 
learned  and  wise,  of  one  of  the  judges  of  that  court, 
or  of  the  single  judge  of  the  court,  not  directly  in 
point,  are  not  of  so  great  weight  when  presented  in 
this  way. 


VALUE  OF  AUTHORITIES  127 

This  leads  to  another  observation,  that  while  the 
main  value  of  the  authority  of  adjudged  cases  is  in 
the  character  of  the  court  which  decided  them,  it  of- 
ten occurs  that  this  value  is  very  much  enhanced  by 
the  standing  of  the  judge  who  delivered  the  opinion. 
If  he  be  a  man  who  has  attained  high  reputation  as  a 
jurist,  as  a  judge,  as  a  law  writer;  if  he  be  one  of 
those  members  of  the  legal  profession  who  stands  out 
prominently  as  a  leading  man  of  the  times  in  the  law, 
or  in  any  particular  branch  of  it,  this  character  in 
the  man  from  whom  the  opinion  emanated,  is  often 
of  more  value  than  the  character  of  the  particular 
court  which  may  have  made  the  decision.  It  is  im- 
possible to  read  the  clearly  announced  opinion  of 
Marshall,  or  Kent,  or  Shaw,  or  Story,  of  this  coun- 
try, or  that  of  Mansfield,  or  Hardwicke,  or  Lord 
Stowell,  of  England,  without  feeling  that  whatever 
they  have  fully  considered  and  clearly  announced  is 
of  immense  weight  and  of  persuasive  force  upon  any 
other  court  or  judge  in  making  up  an  opinion.  This 
is  the  inevitable  result  of  the  superior  reasoning  pow- 
ers, great  learning,  and  the  care  and  industry  which 
it  is  known  belong  to  such  men;  and,  while  it  has 
been  shown  that,  in  some  instances,  they  have  been 
mistaken,  for  important  decisions  of  the  greatest 
men  have  been  overruled,  still  it  remains  true  that 
the  well-considered  judgment  of  such  men  on  a  sub- 
ject which  it  is  known  they  understood,  can  hardly 
be  over-estimated  in  its  value  or  influence  upon  a 
court  of  justice.  He  would  be  a  bold  man  who  would 
undertake  in  a  court  of  the  United  States  to  contro- 
vert a  decision  or  a  proposition  of  law  laid  down  by 


128  SAMUEL  FREEMAN  MILLER 

Chief  Justice  Marshall  in  delivering  an  opinion. 
While  the  exigencies  of  politics,  or  the  unconsidered 
impulses  of  the  legislative  orator,  may  induce  him  to 
question  the  authority  of  the  great  expounder  of  the 
Constitution,  such  an  effort  would  be  wasted  in  a 
court  of  the  United  States.  So,  any  one  of  the  cases 
decided  by  Chancellor  Kent  in  the  seven  volumes  of 
'Johnson 's  Chancery  Reports,  will  stand,  so  far  as  it 
applies,  as  almost  conclusive  of  the  principles  of 
equity  jurisprudence  in  the  High  Court  of  Chancery 
of  England. 

As  regards  the  weight  of  the  principles  announced 
in  adjudged  cases,  it  must  very  largely  depend  upon 
the  character  of  the  court  from  which  they  are  de- 
livered. It  is  impossible  to  attach  as  much  impor- 
tance to  an  opinion  delivered  in  a  District  Court  of 
the  United  States  as  to  one  upon  the  same  subject 
emanating  from  the  Supreme  Court,  though  many 
opinions  of  the  District  Courts,  coming  from  men  of 
marked  ability,  or  who  have  subsequently  become  dis- 
tinguished as  great  judges,  will  carry  a  weight  pro- 
portionate to  that  character.  So  in  regard  to  other 
courts. 

In  this  country  the  decisions  of  the  courts  of  Eng- 
land upon  common  law  subjects,  have  been  received, 
and  wisely,  as  of  the  highest  authority.  The  three 
common  law  courts  of  the  King's  Bench,  the  Common 
Pleas,  and  the  Exchequer,  previous  to  their  merger 
into  one  common  court  by  the  recent  act  of  Parlia- 
ment, are  to-day  the  great  resort  in  disputed  questions 
of  common  law;  and  as  the  common  law  of  England, 
as  we  have  defined  its  limitations,  is  in  this  country 


VALUE  OF  AUTHORITIES  129 

the  great  source  to  which  we  look  for  rules  of  prop- 
erty and  personal  rights,  this  body  of  authoritative 
decisions  is  of  immense  value  to  the  courts.  So  the 
decisions  of  the  English  High  Court  of  Admiralty, 
at  the  head  of  whose  list  of  judges  deservedly  stands 
Sir  William  Scott,  afterwards  Lord  Stowell,  is  a 
mine  of  existing  authority  on  that  subject  which  no 
court  in  the  United  States  exercising  admiralty  ju- 
risdiction can  do  without.  But,  above  all,  the  deci- 
sions of  the  High  Court  of  Chancery,  under  a  succes- 
sion of  eminent  men  from  Lord  Hardwicke  down  to 
the  present  time,  whom  it  is  impossible  to  enumerate, 
must  always  be  looked  to  as  a  fountain  of  light  on 
controverted  questions  of  equity  jurisprudence. 

Of  course  the  House  of  Lords,  whose  appellate  ju- 
risdiction extends  to  both  chancery  and  common  law 
cases,  being  the  highest  court  of  final  review  in  Eng- 
land, and  administered  by  the  ablest  judges  of  that 
country,  is  considered,  both  at  home  and  in  this  coun- 
try, as  of  the  very  highest  judicial  authority,  although 
to  the  mind  of  the  American  statesman  it  presents 
itself  as  an  anomalous  tribunal  not  easily  to  be  recon- 
ciled with  our  views  of  judicial  subordination. 

In  this  country,  however,  it  may  be  remarked  in 
regard  to  the  decisions  of  the  Supreme  Court  of  the 
United  States,  to  which  preeminence  is  conceded  in 
all  courts,  that  while  they  are  conclusive  upon  all 
Federal  courts,  or  courts  of  the  United  States,  prop- 
erly speaking,  they  are  not  necessarily  so  in  those  of 
the  respective  states  of  the  Union,  unless  it  be  upon 
matters  of  Federal  law,  in  regard  to  which  it  is  a 
tribunal  of  final  resort.  Even  where  they  are  not 

9 


130  SAMUEL  FREEMAN  MILLER 

accepted  as  conclusive,  they  are  yet  considered  as 
more  persuasive  and  of  more  weight  than  the  deci- 
sions of  any  other  court,  with  the  exception  of  that  of 
the  highest  court  of  the  state  in  which  the  matter  is 
under  consideration.  The  same  observation  may  be 
made  in  regard  to  the  highest  appellate  tribunal  of  a 
State,  concerning  its  opinions  upon  the  judgments  of 
the  inferior  courts  holden  within  that  state.  In  this 
last  class  of  courts  the  decisions  of  the  state  Supreme 
Court,  or  that  of  highest  appellate  jurisdiction,  is 
conclusive  and  must  be  followed,  but  the  decisions  of 
high  courts  in  other  states  may  be  looked  into  and  ex- 
amined, and  such  weight  attached  to  them  as  the 
character  of  the  court  and  the  nature  of  the  decision 
justifies. 

The  value  of  a  decision  as  a  precedent  is  very  much 
enhanced,  by  the  care  with  which  it  has  been  con- 
sidered, and  if  the  opinion  itself  shows  that  other  de- 
cisions of  the  same  court,  or  of  other  courts  upon  the 
same  point,  have  been  reviewed  and  examined,  it  adds 
to  the  value  of  the  decision  made  on  such  considera- 
tion. But  a  far  more  important  element  in  determin- 
ing the  weight  to  be  given  to  the  opinion  or  decision 
of  a  court  is  the  fact  that  it  has  been  judicially  de- 
cided, after  full  argument  on  both  sides  of  the  case; 
and  if  the  report  of  the  case  shows  that  counsel  di- 
rected the  attention  of  the  court  to  the  main  proposi- 
tion to  be  decided,  and  gave  the  aid  which  they  should 
always  give,  arising  from  their  own  careful  examina- 
tion of  the  matter,  to  enable  the  court  to  decide  cor- 
rectly, it  is  then  a  case  decided  by  a  court  upon  due 
consideration  after  full  argument  on  both  sides,  and 


VALUE  OF  AUTHORITIES  131 

it  necessarily  carries  the  weight  which  attaches  to  the 
care  with  which  the  case  has  been  examined. 

Another  matter  of  much  importance  in  the  consid- 
eration of  adjudged  cases  as  authority  is,  whether  it 
is  a  new  and  a  first  assertion  of  a  distinct  principle 
of  law,  or  whether  it  is  one  of  a  long  line  of  decisions 
upon  the  same  subject;  and  whether  it  be  at  the  be- 
ginning or  end  of  such  a  line,  its  value  will  depend 
greatly  upon  its  relation,  either  of  conformity  or  of 
difference  with  those  decisions.  An  opinion  of  a 
court  upon  a  proposition  fairly  in  issue  before  it, 
which  is  supported  by  a  reference  to  an  unbroken  line 
of  previous  authorities,  or  which,  if  there  are  oppos- 
ing decisions,  discusses  in  a  clear  and  satisfactory 
manner  the  question  of  conflict  between  them,  is  all 
the  more  valuable  from  that  discussion. 

As  we  are  here  speaking  of  the  considerations  which 
govern  a  court  in  determining  the  weight  which  it 
will  give  to  previous  decisions  on  the  same  subject, 
it  is  proper  to  make  a  remark  upon  the  question  of  a 
reconsideration  by  a  court  of  last  resort  in  any  case 
of  its  own  former  opinions.  It  is  obviously  due  to 
the  uniformity  of  the  administration  of  justice  that 
subordinate  courts  should  follow  without  hesitation 
the  opinions  of  the  highest  court  which  has  power  to 
review  the  decision  of  the  inferior  one,  and  that  what- 
ever may  be  its  convictions  as  to  the  soundness  of 
such  decision,  its  duty  to  follow  it  is  plain. 

But  a  question  of  more  delicacy  presents  itself 
when,  in  a  court  of  last  resort,  its  own  prior  deci- 
sions are  called  in  question.  In  such  case  it  is  un- 
doubtedly in  the  power  of  the  court  to  review  and 


132  SAMUEL  FREEMAN  MILLER 

overrule  its  prior  opinions  on  any  question  not  con- 
cluded by  statute.  All  courts,  however,  of  dignity 
and  character,  have  a  due  regard  for  the  principle 
that  in  most  instances  it  is  better  that  the  law  should 
be  firmly  settled  than  that  it  should  be  settled  with 
entire  soundness.  It  is  not  to  be  expected  that  such 
court  will  lightly  overrule  its  former  decision  and 
thus  subject  the  question  at  issue  to  perpetual  con- 
troversy. This  stability  of  the  opinions  of  the  same 
court  is  much  increased  if  the  decision  sought  to  be 
questioned  has  been  repeated  many  times  in  that 
court,  yet  there  may  have  been  decisions  hastily  made 
or  concurred  in  by  a  bare  majority  of  a  court  of  many 
members,  or  one  which  some  resulting  experience 
has  shown  to  be  disastrous  in  its  operation,  which 
should  be  overruled.  Generally  speaking  the  more 
recently  such  decision  has  been  made  the  less  reluc- 
tance the  court  would  feel  to  its  reconsideration,  for 
in  many  cases  such  decisions  have  become  rules  of 
property.  But  in  all  instances  the  court  should  re- 
quire of  counsel  who  propose  to  controvert  such  de- 
cisions to  state  expressly  to  the  court  that  they  are 
not  seeking  to  evade,  get  around  or  to  juggle  with  the 
court  in  regard  to  its  applicability  to  the  case  in 
hand.  They  should  manfully  admit  that  it  stands  in 
their  way  and  courageously  state  that  they  desire  a 
reconsideration  of  it. 

I  have  already  stated  that  there  is  a  great  differ- 
ence in  the  relative  value  as  precedents  of  the  de- 
cisions of  different  courts.  In  this  country,  where 
the  delivery  and  reporting  of  opinions  of  courts  and 
judges  has  multiplied  almost  indefinitely,  and  where 


VALUE  OF  AUTHORITIES  133 

opinions  are  cited  and  published  from  referees,  com- 
missioners, registrars  in  bankruptcy,  and  from  city 
courts,  and  those  of  all  manner  of  inferior  grade  up 
to  the  highest  appellate  courts  of  the  states  and  of 
the  United  States,  it  is  obviously  impossible  in  this 
short  address  to  distinguish  between  them  as  to  their 
value,  or  to  make  any  specific  statement  of  the  weight 
to  be  attached  to  each  of  these  classes  of  decisions. 
It  has  often  been  my  fortune  to  listen  to  able  counsel 
citing  the  decision  of  some  very  inferior  judge  or 
judicial  officer  as  if  it  were  entitled  to  control  the  ac- 
tion of  the  court  which  he  addressed,  and  the  obser- 
vation has  been  forced  from  me,  "Tell  me  what  you 
think  about  this,  for  I  esteem  your  opinion  of  much 
more  value  than  that  of  the  authority  cited. " 

But  it  may  be  stated,  that  the  opinions  of  all  courts 
of  appeal,  although  they  may  be  subject  to  revision 
in  some  higher  court,  as  in  Missouri  and  Illinois,  and 
the  opinions  of  the  Circuit  Courts  of  the  United 
States,  which  are  often  beyond  writ  of  error  or  ap- 
peal, and  perhaps  those  of  others  not  readily  brought 
to  mind,  are,  if  pertinent  to  the  point  in  issue,  worthy 
of  consideration. 

One  of  the  difficulties  which  the  judicial  mind  most 
frequently  encounters  in  determining  the  weight  to 
be  given  to  conflicting  authorities,  is  to  be  found  in 
cases  decided  in  the  highest  courts  of  the  states.  It 
is  obvious  that  in  such  courts  in  states  where,  by 
reason  of  great  cities,  the  commerce  is  extensive  and 
the  moneyed  transactions  of  great  value,  the  commer- 
cial law  is  of  supreme  importance,  the  decisions  are 
of  commanding  weight.  So  also  there  are  states  in 


134  SAMUEL  FREEMAN  MILLER 

which  the  purity  of  the  separate  jurisdiction  in 
equity  has  been  preserved  far  beyond  that  of  others, 
and  this  adds  to  the  authority  of  their  decisions  in 
such  cases.  There  also  may  be,  and  there  probably 
are,  courts  in  which  the  land  laws  have  attained  a 
uniformity  of  administration,  rendering  their  deci- 
sions in  regard  to  land  titles  of  superior  value.  Then 
there  are  courts  of  the  states  which  have  long  pre- 
served their  character  for  ability,  care  and  labor,  and 
in  regard  to  which  it  is  sufficient  to  say  at  once,  that 
this  is  a  case  decided  by  the  Supreme  Court  of  Massa- 
chusetts, of  New  York,  of  Pennsylvania,  or  of  South 
Carolina  in  her  best  days,  to  demand  for  it  at  once 
the  consideration  of  the  court. 

But  while  it  may  be  indelicate,  and  not  precisely 
proper  in  this  place  to  continue  this  comparison,  if  it 
may  be  called  such,  between  the  estimation  in  which 
the  highest  courts  of  the  different  states  is  held,  there 
is  one  court  which,  from  the  nature  of  the  jurispru- 
dence it  administers  and  the  high  character  of  the 
judges  in  the  early  days  of  the  court,  deserves  a  pass- 
ing remark. 

Louisiana  commenced  her  existence  as  a  state  un- 
der a  code  of  laws  differing  from  all  the  other  states 
which  were  founded  on  the  common  law,  in  that  its 
code,  a  new  one,  was  founded  mainly  on  the  Civil 
Law  and  the  Code  Napoleon  of  France.  The 
common  law  has  never  prevailed  in  the  courts  of  that 
state.  The  decisions,  therefore,  of  the  courts  of  Louis- 
iana, at  least  those  which  in  the  early  days  established 
the  construction  of  this  code,  and  which,  in  doing  so, 
had  large  reference  both  to  the  Civil  Law  and  the 


VALUE  OP  AUTHORITIES  135 

Code  Napoleon,  have  always  been  of  high  authority 
upon  any  question  in  the  other  courts  of  the  United 
States  which  involved  a  consideration  of  these  sub- 
jects. 

We  have  thus  far  been  considering  the  value  of 
prior  decisions  in  the  courts  which  are  called  upon 
to  follow  or  reject  them,  and  most  of  the  rules  which 
govern  the  judge,  both  in  regard  to  the  applicability 
of  the  decision  and  the  weight  of  its  authority,  must 
also  govern  the  counsel  and  the  advocate  in  deter- 
mining how  far  he  will  use  them  in  argument  before 
the  court.  Of  course  it  is  his  duty  to  examine  these 
cases  with  great  care  to  satisfy  himself  that  they  have 
a  bearing  on  the  case  which  he  has  before  him,  and 
how  far  he  shall  use  it  in  argument. 

It  will  also  be  his  duty  to  criticise  the  cases  pro- 
duced by  his  adversary  and  point  out  to  the  court 
anything  which  detracts  from  their  value  in  guiding 
the  decision  of  the  case  on  hand.  He  should  care- 
fully consider  whether  there  is  any  analogy  between 
the  cases  before  the  court  and  the  opinion  or  decision 
cited  by  his  opponent,  and  he  should  be  ready  to 
point  out  the  want  of  such  analogy,  or  its  limited  ex- 
tent, and  often  in  this  manner  to  show  that  it  really 
favors  his  view  of  the  case. 

An  observation  or  two  in  regard  to  the  manner  in 
which  counsel  should  present  authorities  to  the  court, 
will  close  what  I  have  to  say  to  you  on  this  occasion. 

This  presents  itself  under  two  aspects:  first,  as  to 
the  manner  in  which  adjudged  cases  are  to  be  used 
in  oral  argument;  and  second,  in  briefs  or  written 
or  printed  arguments. 


136  SAMUEL  FREEMAN  MILLER 

As  regards  the  former,  it  is  of  very  little  use  to  the 
court  that  counsel  should  refer  to  a  case  in  a  general 
way,  unless  it  is  one  of  those  remarkable  cases,  the 
principle  of  which  is  well  known  to  all  lawyers  and 
judges,  and  it  is  no  compliment  to  a  court  for  coun- 
sel to  rely  upon  a  case,  of  which  in  oral  argument  he 
merely  reads  a  part  of  the  syllabus  or  a  few  lines  of 
the  head  notes. 

It  is  one  of  the  rarest  qualities  of  a  reporter  to  be 
able  to  make  a  good  syllabus  to  his  report  of  a  case. 
Many  reporters  who  use  accuracy  and  skill  in  stating 
the  pleadings  and  the  evidence  in  a  case,  and  the  opin- 
ion of  the  judge  who  delivered  it,  do  not  seem  capable 
of  summarizing  in  a  few  sentences  the  principles  on 
which  the  court  proceeded;  and  they  avoid  this  by  a 
long  sentence  in  which  it  is  said  that  where  A.  did  so 
and  so  to  B.,  and  B.  did  so  and  so  to  E.,  and  C.  had 
such  and  such  an  interest  in  it,  "Held;"  and  what 
was  held  is  simply  a  decision  of  the  case  for  or 
against  one  of  the  parties.  At  all  events,  if  a  case 
is  worth  citing  in  an  oral  argument  to  the  court,  and 
especially  to  a  court  of  final  resort,  it  is  worth  while 
to  put  that  court  in  possession  of  so  much  of  the  ele- 
ments of  it  as  is  necessary  to  understand  what  was  de- 
cided in  it. 

The  counsel  whom  I  have  known  who  used  the 
authority  of  adjudged  cases  with  most  skill  and  effect, 
will,  with  the  book  from  which  they  intend  to  read 
lying  before  them,  make,  in  their  own  language  and 
not  in  that  of  the  reporter,  a  condensed  statement  of 
the  issues  in  the  case,  and  how  they  arose,  so  far  as 
they  are  applicable  to  the  point  in  hand.  Having 


VALUE  OF  AUTHORITIES  137 

done  this  and  given  the  court  whom  he  is  addressing 
to  understand,  if  necessary,  the  character  of  the  court 
which  decided  the  case  he  is  about  to  cite,  counsel  then 
reads  from  the  report  of  the  opinion  the  most  con- 
densed statement  he  can  find  of  the  decision  of  the 
court  and  of  the  reasons  on  which  it  was  based.  This 
can  be  done  within  a  very  short  time,  if  counsel  will 
prepare  themselves  in  advance  for  the  presentation 
of  the  case,  and  it  is  vastly  more  effectual  in  its  in- 
fluence on  the  mind  of  the  listening  court  than  read- 
ing page  after  page  from  a  voluminous  decision  which 
the  court  cannot  remember,  much  of  which  is  useless 
so  far  as  the  case  in  hand  is  concerned,  and  the  rela- 
tion of  that  part  which  may  be  pertinent  obscured  by 
the  reading  of  a  long  and  uninteresting  opinion.  By 
the  former  method  the  court  is  at  once  put  in  pos- 
session of  the  point  actually  decided  in  the  case  cited, 
and  is  enabled  to  discern  how  far  it  is  applicable  to 
the  case  before  it,  and  to  gain  some  idea  of  the  rea- 
soning on  which  that  principle  was  made  to  rest  in 
the  former  case.  If  it  becomes  necessary  in  the  fur- 
ther consideration  of  the  matter  by  the  court  to  refer 
to  this  decision,  the  care  and  skill  of  counsel  has 
pointed  out  where  all  that  is  valuable  may  be  found 
without  the  labor  of  reading  through  a  hundred  pages 
of  useless  matter  to  find  it. 

It  is  not  so  often  in  an  oral  argument  that  the 
court  is  overrun  with  the  number  of  cases  read  from 
and  commented  upon  by  counsel,  but  in  their  printed 
arguments  or  briefs  counsel  frequently  seem  to  forget 
the  grave  and  burdensome  duties  of  the  courts  to 
which  they  are  presented.  If  it  were  not  so  common 


138  SAMUEL  FREEMAN  MILLER 

it  would  be  a  matter  of  wonder  that  counsel,  in  mak- 
ing what  they  call  a  "  brief, "  or  even  in  a  printed 
argument,  where  a  proposition  of  law  is  suggested  as 
applicable  to  the  case,  should  append  to  it  from 
twenty  to  a  hundred  citations  of  adjudged  cases,  with 
their  names  and  the  books  where  they  are  to  be  found. 

It  is  very  easy  to  see,  in  many  instances,  that  coun- 
sel have  simply  abridged  their  own  labor  by  attempt- 
ing to  transfer  to  the  court  the  duty  of  examining 
this  list  of  authorities,  which  they  themselves  have 
shirked,  by  copying  from  a  string  of  cases  found  in  a 
digest,  and  supposed  to  have  reference  to  the  propo- 
sition in  question.  I  do  not  hesitate  to  say  that  in  the 
condition  of  business  in  the  courts  of  higher  jurisdic- 
tion in  this  country,  it  is  an  absolute  necessity  simply 
to  disregard  such  a  list  as  that.  Unless  the  counsel 
who  prepares  these  printed  briefs  or  arguments  has 
examined  the  cases  for  himself,  and  is  capable  of 
stating  them  in  a  condensed  form,  he  has  no  right  to 
expect  an  overworked  court  to  do  it  for  him,  neither 
has  he  any  right  to  cite  or  refer  to  a  case  the  value 
and  applicability  of  which  he  has  not  fully  ascer- 
tained. It  has  often  been  stated,  and  it  cannot  be  too 
strongly  asserted  here,  that  a  few  cases  directly  in 
point,  and  well  presented,  decided  by  a  court  or  courts 
of  high  estimation,  are  far  more  valuable  than  the 
innumerable  references  to  cases  whose  analogy  is 
very  remote,  whose  authority  is  not  very  high,  and 
whose  only  weight  would  seem  to  be  that  of  their 
number. 

It  is  not  too  much  to  expect  of  counsel,  and  it  is 
certainly  to  their  interest,  and  that  of  their  clients, 


VALUE  OP  AUTHORITIES  139 

that  they  should  pursue  in  their  printed  arguments  or 
briefs  the  course  I  have  suggested  in  regard  to  oral 
arguments;  selecting  a  few  of  the  strongest  cases  in 
their  favor;  stating  in  a  few  words  the  character  of 
the  court,  if  this  be  necessary,  which  decided  them, 
and  in  language  as  condensed  as  possible  the  point 
under  consideration  in  that  court,  the  manner  in 
which  it  arose,  and  then  give  one  or  two  extracts  in 
the  precise  terms  of  the  opinion  of  the  court  as  to 
the  point  under  discussion.  It  will  be  so  apparent  to 
the  court,  when  an  authority  is  presented  in  that 
manner,  that  it  has  before  it  in  the  brief  of  counsel 
what  is  useful  to  be  considered  that  it  will  not  be  nec- 
essary to  hunt  up  and  read  the  whole  case  to  be  sure 
in  that  respect ;  and,  while  generally  the  court  should 
not  decide  a  case  upon  the  authority  of  a  previous 
decision  without  reading  it  carefully,  the  judge  in 
examining  the  case  will  in  many  cases  be  so  well  satis- 
fied that  a  correct  statement  of  it  has  been  made  by 
counsel  that  he  need  look  no  further  for  his  own  sat- 
isfaction. 

It  is  a  very  great  mistake,  common  to  counsel,  and 
especially  to  young  counsel,  to  consider  that  a  deci- 
sion of  any  court  must  necessarily  command  the  re- 
spect of  another.  The  time  of  counsel  in  an  oral  ar- 
gument, or  space  in  a  printed  one,  is  generally  used 
much  more  profitably  in  a  careful  presentation  in  his 
own  language  and  style,  of  the  reasoning  on  which 
the  different  decisions  are  based,  as  well  as  of  his 
opinion  of  the  soundness  of  that  reasoning  and  of  its 
applicability  to  the  case  on  hand,  than  in  reading 
from  or  citing  innumerable  decisions  imperfectly  re- 


140  SAMUEL  FREEMAN  MILLER 

ported,  insufficiently  sustained  by  the  reasoning  of 
the  court  itself,  and  deserving  but  little  weight  from 
the  character  of  the  court  which  decided  them. 

The  subject  is  inviting  and  the  field  large.  The 
value  of  treatises,  good  and  bad,  would  be  a  good 
topic  for  a  magazine  article,  or  an  address.  But  I 
have  detained  you  long  enough,  and  with  thanks  for 
your  attention  I  forbear  to  burden  it  further. 


APPENDIX   C 


APPENDIX    C 

THE  CONFLICT  IN  THIS  COUNTRY  BETWEEN 
SOCIALISM  AND  ORGANIZED  SOCIETY1 

LADIES  AND  GENTLEMEN: — It  is  always  an  occasion 
of  great  interest  when  a  considerable  portion  of  those 
who  have  been  pursuing  a  course  of  education  and 
training,  whether  in  the  lower  or  higher  grades,  come 
to  the  end  of  their  school-days,  and  leave  the  institu- 
tion of  learning  in  which  their  time  has  been  spent 
for  the  active  pursuits  of  life,  carrying  with  them  the 
ordinary  evidences,  by  way  of  diplomas,  that  they 
have  faithfully  attended  and  profited  by  the  course 
of  instruction  thus  ended.  We  come  together  at  these 
Commencement  Days  of  the  Iowa  State  University, 
fostered  and  protected  as  it  is  under  the  auspices  of 
the  state  government,  to  take  part  in  the  exercises  in- 
cident to  the  graduation  of  its  various  classes:  the 
scientific,  classical,  literary,  law,  and  medical.  The 
instructors,  the  pupils,  and  the  graduates  are  all  here, 
with  the  people  interested  in  the  success  of  the  insti- 
tution, and  especially  those  who  have  at  heart  the 
happiness  and  prosperity  of  the  pupils  who  now  take 

1  An  address  delivered  by  Justice  Samuel  F.  Miller  at  the 
Commencement  of  The  State  University  of  Iowa,  June  19, 
1888.  The  address  as  here  given  is  taken  from  a  pamphlet 
published  by  The  State  University  of  Iowa. 


144  SAMUEL  FREEMAN  MILLER 

their  departure  from  its  halls  for  the  long  journey  of 
life.  I  am  happy  in  being  chosen  to  express  the  con- 
gratulations of  this  large  audience,  made  up  of  peo- 
ple collected  from  all  parts  of  this  state,  as  well  as 
from  other  states,  upon  the  successful  termination  of 
another  year  for  this  University,  and  to  voice  the 
good  wishes  of  all  for  the  graduates  who  now  close 
their  school  career  and  set  up  for  themselves  in  life. 
No  doubt  various  emotions  fill  the  hearts  of  the 
young  people  who  to-day  graduate  from  this  college. 
Many  go  forth  with  bright  anticipations,  seeing  no 
cloud  hanging  over  the  way  along  which  they  are  to 
travel,  confident  of  their  success;  others  feel  the  em- 
barrassment and  responsibilities  of  their  new  posi- 
tion, distrust  their  capacity,  and  doubt  the  result; 
while  still  others  feel,  as  all  ought  to  feel,  the  reso- 
lution to  perform  their  duty,  trusting  that  the  con- 
sequences will  prove  to  be  those  which  follow  an  as- 
siduous and  industrious  application  to  the  work  of 
life.  It  does  not  consist  with  my  purpose  to-day,  nor 
with  my  feelings  on  such  a  joyous  occasion  as  this, 
to  throw  a  cloud  over  your  brilliant  expectations,  for, 
indeed,  my  own  experience  and  observation  is  that 
the  way  is  open  for  all  to  reach  that  degree  of  success 
in  life  which  is  consistent  with  the  highest  degree  of 
happiness.  You  may  not  all  attain  the  topmost  round 
of  the  ladder  of  ambition  or  fame  in  the  pursuit 
which  you  shall  adopt,  or  in  the  course  which  may  be 
marked  out  for  you,  but  you  can,  by  well-directed  ef- 
fort and  perseverance,  attain  to  a  reasonable  success, 
secure  a  standing  in  the  community  and  a  character 
in  the  profession  or  pursuit  which  you  may  select, 


SOCIALISM  AND  SOCIETY  145 

obtain  the  confidence  and  respect  of  your  neighbors 
and  associates,  and  draw  to  yourself  the  love  and  af- 
fection of  surrounding  friends;  so  that,  with  a  rea- 
sonable amount  of  the  world's  goods,  if  you  do  not 
reach  the  zenith  of  your  ambition  you  may  yet  be  in 
the  happy  condition  which  was  desired  by  the  wise 
man  of  the  olden  time,  when  he  said:  "Give  me 
neither  poverty  nor  riches"  (Prov.  xxx.,  8),  and  may 
live  both  usefully  and  happily,  enjoying  in  this  world 
what  God  intended  should  fall  to  your  lot  and  dif- 
fusing around  you  the  blessings  which  always  attend 
a  well-spent  life. 

I  wish,  however,  on  this  occasion  to  lay  aside  the 
considerations  mainly  pertinent  to  your  personal  hap- 
piness, and  to  point  out  to  you  that  there  are  duties 
which  every  man  owes  to  the  community  at  large,  and 
I  cheerfully  add  every  woman,  too,  in  regard  to  mat- 
ters which  interest  all,  but  which,  while  they  concern 
everybody  and  each  member  of  the  body  politic,  can 
only  be  governed  and  controlled  by  public  action.  To 
the  good  and  useful  results  which  it  is  desirable  should 
be  attained  by  the  agitation  of  such  matters  it  is  es- 
sential that  there  should  be  a  sound  sentiment  among 
the  great  body  of  the  people,  and  that  this  should  be 
formulated  into  public  action.  The  world,  after  all, 
is  being  governed  more  and  more,  in  regard  to  a  vast 
number  of  things,  as  to  which  the  great  mass  of  the 
people  were  formerly  indifferent,  by  the  currents  of 
popular  feeling  and  opinion.  It  is  fortunate  for  the 
world  that  as  this  increasing  power  exercised  by  pub- 
lic opinion  over  the  comforts  and  happiness  of  the 
masses  of  the  community  has  grown  with  such  great 

10 


146  SAMUEL  FREEMAN  MILLER 

rapidity  during  the  last  few  years  that  it  has  been 
accompanied  by  an  equal  growth  in  the  enlighten- 
ment of  the  public  mind,  and  by  the  spread  of  in- 
formation, not  only  as  regards  the  new  acquisitions  of 
knowledge  and  science,  and  their  application  to  the 
needs  and  pleasures  of  human  society,  but  by  the  dif- 
fusion among  all  classes  of  the  people  of  what  we  may 
call  a  universal  education,  thus  making  the  public 
opinion,  which  must  govern  the  general  body  politic, 
and  control,  not  only  the  future  of  this  nation  but 
that  of  others,  a  more  enlightened  one  as  its  power 
has  increased. 

In  what  I  am  now  about  to  say  to  you,  I  address 
myself  to  all  classes  of  persons  in  this  audience.  The 
subject  is  a  profoundly  interesting  one  to  professors 
and  tutors,  in  whatever  department  of  instruction 
they  may  be  engaged,  to  the  trustees  of  this  growing 
institution,  to  the  pupils  who  may  yet  remain  to  fin- 
ish their  course  of  study,  and  to  all  who  have  gathered 
here  upon  this  occasion  and  who  seem  by  their  pres- 
ence to  suggest  the  sympathy  which  they  doubtless 
feel  in  the  cause  of  education  and  human  advance- 
ment. 

But  to  the  young  gentlemen  who  have  just  gradu- 
ated, the  appeal  is  the  stronger  because  of  their  youth- 
ful energy  and  probable  length  of  life,  as  well  as  by 
reason  of  the  fact  that  their  minds  may  be  supposed 
to  be  open  to  all  the  considerations  which  ought  to 
govern  their  future  actions  in  regard  to  these  mat- 
ters. They  are  also  under  special  obligations  to  take 
part  in  the  controversy  to  which  I  shall  presently  al- 
lude, because  they  have  received  the  benefits  of  the 


SOCIALISM  AND  SOCIETY  147 

contribution  made  by  the  government  of  the  state 
to  this  institution  in  which  they  have  been  educated. 
Their  instruction  has  been  in  effect  the  putting  on  of 
armor  for  the  great  battle  which  is  to  come,  if  indeed 
it  is  not  upon  us  now.  An  ancient  king  of  Israel 
once  said:  "Let  not  him  that  girdeth  on  his  harness 
boast  himself  as  he  that  putteth  it  off-"  (1  Kings, 
xx.,  11).  You  are  just  putting  it  on;  you  are  freshly 
prepared  for  the  great  battle  in  which  you  can  not 
refuse  without  disgrace  to  take  your  part.  I  use  the 
word  "battle"  as  meaning  an  intellectual  and  moral 
conflict,  but  it  may  result  in  that  not  more  important 
but  perhaps  more  distressing  kind  of  struggle  in 
which  cannon  and  sword  and  blood  shall  determine 
the  victory. 

It  is  a  very  great  mistake,  and  a  very  common  one, 
even  for  well-read  persons,  to  adopt  the  idea  that  tlie 
progress  of  the  human  race  in  the  science  of  govern 
ment,  in  the  arts  of  civilization  and  refinement,  arid 
in  the  establishment  of  morality  and  religion,  has 
been  constantly  and  steadily  towards  improvement 
and  perfection.  The  reverse  has  often  been  the  case. 
When  we  consider  its  condition  now  as  compared  with 
very  early  times,  it  is  certainly  true  that  there  has 
been  great  progress  in  all  that  concerns  humanity,  and 
that  the  world  is  now  vastly  better,  wiser,  and  hap- 
pier than  it  was  five  thousand,  or  even  two  thousand, 
years  ago;  and  yet  the  course  of  this  great  gain  to- 
wards betterment  of  the  human  race  has  often  been 
interrupted.  Bright  periods,  when  its  advancement 
was  rapid,  have  been  followed  in  its  history  by  long 
intervals  of  moral  darkness  and  stagnation,  if  not  ac- 


148  SAMUEL  FREEMAN  MILLER 

tual  retrogression.  If  its  amelioration  has  gone  at 
times  in  an  upward  direction  per  saltum,  it  has  taken 
now  and  then  sudden  leaps  downward  into  the  chasm 
of  barbarism  and  ignorance. 

I  need  not  detain  you  by  references  to  the  numer- 
ous illustrations  of  this  fact  which  might  be  drawn 
from  the  history  of  the  past.  There  was  a  high  de- 
gree of  advancement  at  one  time  in  ancient  Egypt, 
and  we,  even  now,  marvel  over  the  remains  of  the 
great  Babylonian  civilization,  of  which  we  only  have 
the  remnants  and  memorials  in  the  fragments  of  its 
architecture  and  its  arts  that  time  has  not  been  able 
to  destroy.  The  culture  and  refinement  of  those  na- 
tions have  perished;  the  people  among  whom  they 
once  existed  have  become  ignorant  and  degraded, 
and  are  not  as  highly  civilized  or  as  happy  to-day  as 
they  were  thousands  of  years  ago. 

To  come  down  to  historic  epochs,  regarding  which 
we  have  abundant  written  accounts,  it  is  well  known 
that  Greece,  the  brightest  spot  of  ancient  history,  had 
a  civilization  of  the  highest  order.  It  has  left  re- 
mains of  its  attainments  in  painting,  poetry,  and 
sculpture  which  the  present  day  has  hardly  equalled, 
and  certainly  has  not  been  able  to  excel.  Yet  that 
country,  with  all  its  civilization,  retrograded  into  a 
home  for  pirates  and  robbers,  and  slumbered  for  ages 
in  a  depth  of  ignorance,  in  which  the  only  art  or  cul- 
ture remaining  was  the  indestructible  remnant  of 
what  had  been  left  as  their  heritage  from  the  days  of 
Grecian  power  and  glory. 

The  same  may  be  said  of  Rome,  and  of  all  other 
countries  that  have  at  any  time  made  for  themselves 


SOCIALISM  AND  SOCIETY  149 

a  name  among  the  nations.  After  the  principal  epoch 
which  distinguished  the  advancement  of  the  Roman 
people,  succeeding  that  of  Greece,  there  came  the 
dark  period  of  the  middle  ages,  when  the  little  learn- 
ing still  cultivated  was  only  to  be  found  in  the  con- 
vents and  monasteries,  among  the  ecclesiastics  and  re- 
ligious bodies,  whose  general  state  of  information  was 
but  little  elevated  above  that  of  the  most  common 
and  ignoble  classes. 

It  was  in  this  gloomy  condition  of  affairs  that  the 
sturdy  priest  of  Wittenberg  nailed  his  theses  upon 
the  gates  of  the  church,  and  offered  to  maintain  them 
in  the  university  against  all  impugners.  Therein  he 
challenged  the  priests  for  their  ignorance  of  the  re- 
ligion which  they  professed  to  teach,  and  the  wick- 
edness of  the  means  by  which  they  undertook  to  save 
the  souls  of  men  and  so  brought  about  the  reforma- 
tion, mainly  intended  to  be  of  a  religious  character, 
but  which  carried  with  it  the  revival  of  learning,  the 
increased  study  of  the  classics  and  poetry,  the  intro- 
duction of  modern  scientific  research,  and  marvelous 
improvements  in  the  arts,  and  in  a  comparatively 
short  space  of  time  revolutionized  the  civilized  world. 

It  is  a  very  remarkable  fact  that  this  great  reform  in 
religious  matters,  which  swept  over  and  seemed  to 
take  possession  of  about  half  of  Europe,  so  far  as 
territorial  extension  is  concerned,  has  made  very  lit- 
tle advance  since  the  death  of  Luther.  The  map 
stands  divided  to-day  between  the  Protestant  and 
the  Catholic  forms  of  belief  by  a  line  which  neither 
the  changes  of  government  nor  the  fluctuations  caused 
by  conquests,  or  the  formation  of  confederacies,  have 


150  SAMUEL  FREEMAN  MILLER 

been  able  to  obliterate.  The  impulse  which  animated 
the  great  uprising  of  that  period  seems  to  have  al- 
most burnt  itself  out,  and  passed  away  with  the  lives 
of  the  men  among  whom  it  originated. 

Coming  more  specifically  to  consider  the  form  and 
success  of  political  institutions,  in  regard  to  their  in- 
fluence upon  the  people  subjected  to  them,  it  seems 
probable  that  at  no  period  in  the  history  of  the 
world  was  human  government,  as  a  means  of  con- 
ducting organized  society,  in  a  more  deplorable  con- 
dition than  it  was  at  the  outbreak  of  the  French  revo- 
lution, if  we  regard  the  amount  of  knowledge,  intel- 
ligence, scientific  investigation,  and  all  that  con 
cerned  the  happiness  of  man  which  then  existed 
among  the  most  enlightened  nations  of  Europe.  la- 
deed,  while  Voltaire,  with  his  witty  attacks  upon  the 
priesthood  and  the  corruptions  of  the  nobility,  and 
his  stinging  criticisms  of  their  oppressions  of  the 
poor,  was  entertaining  the  world  with  the  brilliancv 
of  his  genius  on  these  interesting  subjects,  and  whiU; 
Rousseau  was  writing  in  the  capital  of  France  his 
''Social  Contract, "  enunciating  principles  utterly 
at  variance  with  the  rights  of  kings  and  barons,  they 
were  both  abandoning  themselves  to  luxuries  of  the 
most  debasing  character.  Neither  these  pungent  writ- 
ers, nor  their  disciples,  nor  the  literary  "  doctri- 
naires," as  they  were  called  in  France  during  the 
revolution,  seemed  to  realize  the  fact  that  they  were 
playing  with  dangerous  weapons,  and  that  the  prin- 
ciples which  their  teachings  tended  to  establish  must 
lead  to  the  overthrow  of  the  existing  order  of  things 
both  in  government  and  in  social  life. 


SOCIALISM  AND  SOCIETY  151 

But  they  did  accomplish  this  very  result.  The 
truths,  or  the  ideas,  whether  they  were  true  or  not, 
which  they  advocated  and  sought  to  establish  per- 
meated the  minds,  not  only  of  the  French,  but  of  the 
people  of  the  continent  of  Europe  generally,  and 
directly  tended  to  the  complete  overthrow  of  the  ex- 
isting political  and  social  conditions. 

A  state  of  abject  poverty  and  suffering,  and  in 
many  places  of  degradation  amounting  almost  to  bru- 
tality, existed  among  millions  of  the  peasantry  or  com- 
mon people.  The  nobility  were  characterized  by  the 
licentiousness  of  their  private  lives  and  the  oppres- 
siveness of  their  conduct  toward  their  inferiors,  while 
the  loose  morals  of  most  of  the  teachers  of  religion, 
combined  with  these  dangerous  elements,  constituted 
a  magazine  prepared  for  destruction  to  which  in  a 
single  day  the  torch  was  applied,  and  the  entire  so- 
cial fabric  exploded. 

It  is  not  expedient  or  necessary  for  me  to  attempt 
to  describe  here  the  horrors  of  the  French  revolution, 
nor  to  seek  to  balance  its  evil  and  its  good.  Un- 
doubtedly the  ultimate  benefit  to  humanity  has  been 
very  great.  The  condition  of  the  lower  orders  of 
people  has  been  vastly  improved,  and  the  doctrines 
of  the  equality  of  man  in  regard  to  his  rights  in  the 
conduct  of  the  government  under  which  he  lives  have 
been  gradually  established,  though  with  many  fluc- 
tuations. There  is  no  more  striking  evidence  of  the 
principle  to  which  I  adverted  a  few  moments  ago — 
that  the  progress  of  humanity  towards  civilization 
and  the  secure  establishment  of  the  rights  and  happi- 
ness of  all  men  is  by  fits  and  starts,  often  retrograd- 


152  SAMUEL  FREEMAN  MILLER 

ing,  often  advancing — than  the  history  of  the  French 
nation,  from  the  period  of  the  revolution  down  to  the 
present  time.  The  despotisms  of  the  two  Napoleons, 
the  radical  attitude  which  the  government  assumed 
as  conducted  by  different  legislative  bodies,  all  show 
this  uncertain  and  zigzag  movement  which  has  char- 
acterized its  march  toward  the  summit  of  the  moun- 
tain of  human  happiness. 

I  have  endeavored  to  produce  before  your  imagina- 
tion this  picture  of  the  mode  in  which  the  human  race 
makes  its  journey  from  the  lower  depths  of  ignorance, 
poverty,  and  misery  to  the  higher  ground  of  plenty, 
of  civilization,  and  of  social  well-being;  and  my  ob- 
ject in  doing  this  is  that  you  may  see  that  even 
this  government  of  ours,  of  which  we  are  said  to  be 
so  vain,  and  of  which  Fourth  of  July  orators  and  as- 
pirants for  public  honors  give  you  nothing  but  eulogy 
and  praise,  may  possibly  suffer  some  retrograde  ac- 
tion, which,  if  not  as  disastrous  as  the  French  revo- 
lution or  as  fatal  as  the  downfall  which  extinguished 
the  glories  of  Egypt  and  of  Babylon,  may  yet,  if  not 
well  attended  to,  set  us  back  for  a  century  or  more  in 
the  race  of  national  advancement. 

From  the  time  of  the  establishment  of  our  inde- 
pendence as  a  nation  we  have  been  taught  to  believe 
that  the  principles  upon  which  our  government  is 
founded  are  those  of  all  others  best  adapted  to  se- 
curing the  just  rights  of  all  its  citizens,  to  guard  us 
against  dangers  from  abroad  and  convulsions  within, 
to  provide  such  a  condition  of  society  that  every  in- 
dividual may  in  peace  enjoy  the  products  of  his  own 
labor,  and  sit  safely,  to  use  a  scriptural  expression, 


SOCIALISM  AND  SOCIETY  153 

under  his  own  vine  and  fig  tree,  and  feel  sure  that  he 
shall  be  protected  in  the  enjoyment  of  what  he  has, 
whether  it  be  the  production  of  the  work  of  his  own 
hands  or  an  inheritance  from  his  father,  who  had 
made  and  earned  it  for  him.  In  short,  we  have  come 
to  consider  that  honest  industry,  careful  thrift,  ju- 
dicious economy,  and  the  acquisitions  of  labor,  which 
are  the  rewards  of  merit,  are  all  better  protected  and 
made  more  safe  by  our  form  of  government  than  un- 
der that  of  any  other  in  the  world. 

But  he  must  be  a  very  unobservant  man  who  has 
not  seen,  within  the  past  few  years,  that  there  are 
dangers  threatening  the  principles  lying  at  the  foun- 
dation of  our  social  fabric  which  suggest  possibili- 
ties not  at  all  pleasant  to  the  lover  of  his  race.  We 
have  recently  passed  through  a  civil  war  which  shook 
our  institutions  to  their  very  base,  and  which,  dur- 
ing its  continuance,  seemed  capable  of  overturning 
altogether  the  established  government,  and  of  put- 
ting in  its  stead  a  system  of  society  more  intolerable, 
for  a  very  large  proportion  of  the  people,  than  was 
the  semi-barbarism  of  the  ages  when  the  barons  held 
sway  in  Europe.  We  fortunately  escaped  that  catas- 
trophe, and  our  civic  establishment  is  now  settled 
upon  a  firmer  basis  than  ever  before;  but,  in  the  few 
years  that  have  elapsed  since  the  close  of  that  great 
struggle,  an  insidious  form  of  attack  has  been  made, 
not  only  upon  the  principles  which  underlie  all  gov- 
ernments, but  upon  those  also  which  are  essential  to 
the  organized  existence  of  mankind  in  the  bonds  of 
social  union. 

This  warfare  is  being  continually  and  energetically 


154          SAMUEL  FREEMAN  MILLER 

urged  by  bands  of  men,  united  in  a  common  pur- 
pose, with  the  aid  of  learning  and  all  the  helps  that 
modern  science  can  afford,  and  it  is  pressed  with  an 
audacious  avowal  of  doctrines  which  must  be  utterly 
abhorrent  to  those  brought  up  in  the  belief  that  a  cer- 
tain amount  of  restriction  is  essential  to  the  best  in- 
terests of  all  communities.  Under  the  various  cogno- 
mens of  anarchists,  nihilists,  socialists,  or  commu- 
nists, these  men  are  banded  together  into  clubs  or  asso- 
ciations, and  sometimes  into  communities,  whose  ob- 
ject, avowedly  in  some  cases,  and  in  most  of  them 
apparently,  is  the  destruction  of  organized  society. 
They  maintain  that  government  and  social  life,  as 
constituted  in  all  civilized  communities  throughout 
the  world,  is  so  radically  opposed  to  the  true  interests 
and  well-being  of  the  human  race  that  it  can  not  be 
reformed,  modified,  or  even  gradually  changed  to 
meet  their  extreme  views,  but  that  it  must  be  over- 
turned and  annihilated;  that  it  must  be  resolved  into 
its  original  elements  in  order  that  a  new  form  of  com- 
munal association  may  be  reconstructed  upon  its 
ruins. 

It  is  difficult  to  see  wherein  the  condition  of  so- 
ciety, as  it  is  proposed  to  be  constituted  under  the 
ultra  principles  adopted  by  these  propagandists, 
would  differ  materially  from  the  horrors  and  the 
state  of  degradation  in  which  the  earliest  ancestors 
of  the  human  race  found  themselves,  or  even  the 
situation  of  some  of  the  primitive  tribes  of  savages 
still  in  existence.  So  far  as  a  common  principle  can 
be  discerned  as  animating  and  running  through  the 
distinctions  of  these  different  classifications  of  men 


SOCIALISM  AND  SOCIETY  155 

who  seek  to  overthrow  the  existing  order  of  things,  it 
is  the  abolition  of  the  right  of  property.  Their  suc- 
cess means  the  redistribution  of  all  the  existing  accu- 
mulations of  wealth  and  the  means  of  comfortable 
existence,  among  all  individuals  of  which  society  is 
composed,  of  all  characters,  of  all  ages,  and  of  all 
pursuits.  This  distribution  is  to  be  one  of  perfect 
equality,  and  in  many  cases  implies  the  extinction 
of  the  family  relation,  and  as  advocated  by  most  of 
them,  it  signifies  freedom  from  all  social,  moral,  and 
governmental  restraint.  It  means  that  all  future  ac- 
quisitions of  property,  all  the  accretions  of  honest  in- 
dustry, and  all  the  valuable  emanations  of  the  human 
mind  shall  hereafter  constitute  one  common  stock,  in 
which  the  ignorant  and  the  wise,  the  lazy  and  the 
industrious,  the  wicked  as  well  as  the  moral,  shall 
share  alike  and  reap  the  benefits  which  result  from 
the  improvements  that  have  been  made  in  the  world 
in  its  industrial,  artistic,  and  economic  progress. 

It  is  true  that  there  are  differences  in  the  degree 
and  the  length  to  which  some  of  these  suggested 
changes  shall  extend.  Some  sects  propose  to  leave 
certain  rights  of  property  and  certain  principles  of 
restriction  still  in  force,  but  the  ideas  of  all  tend  in 
the  main  to  the  same  result.  Mr.  George  and  his  fol- 
lowers content  themselves  mainly  with  an  effort  to 
reform  the  principles  of  the  right  of  private  owner- 
ship in  land.  Perhaps  it  would  be  more  strictly  cor- 
rect to  say  that  they  seek  to  abolish  this  private  right 
altogether,  and  propose  to  establish  in  its  place  the 
dogma  that  land,  like  air  and  water,  is  a  common  gift 
by  the  Creator  to  all  his  children.  Under  this  euphe- 


156  SAMUEL  FREEMAN  MILLER 

mistic  and  apparently  benevolent  idea  they  urge  the 
proposition  that  no  man  can  appropriate  any  par- 
ticular piece  of  land  to  his  own  exclusive  use;  that 
it  makes  no  difference  what  toil  may  have  enabled  him 
to  convert  the  originally  rugged  soil  to  a  state  fit  for 
the  use  of  the  agriculturist  or  the  gardener;  that  it 
is  of  no  consequence  how  many  days  of  weary  labor 
he  may  have  spent,  nor  how  many  nights  of  aching 
pains  he  may  have  suffered  before  he  was  able  to 
bring  the  naturally  wild  earth  under  subjection,  that 
it  might  become  his  servant  and  contribute  for  him 
the  means  of  ease  and  comfort.  They  assert  that 
when  he  has  accomplished  this  that  he  has  only  done 
it  for  the  good  of  the  whole  community,  not  only 
that  it  may  be  of  use  to  him  and  those  for  whom  he 
may  wish  to  provide,  but  that  it  shall  inure  equally 
to  the  benefit  of  every  idle  loafer  and  lazy  vagabond 
who  sleeps  in  some  shed  at  night  and  wanders  a  beg- 
gar and  robber  by  day.  The  legitimate  consequence 
which  follows  from  an  adoption  of  their  doctrines  is 
that  this  outcast  who  has  recklessly  wasted  his  oppor- 
tunity has  an  equal  right  to  share  in  the  use  and  prod- 
uct of  this  spot  of  earth  which  has  been  converted 
from  its  originally  sterile  condition  by  the  hard  work 
and  diligent  labor  of  the  industrious  man  into  a  veri- 
table Garden  of  Eden. 

I  take  this  example  of  the  doctrines  of  these  re- 
formers, as  they  call  themselves,  in  a  mass,  because  it 
is  probably  the  most  attractive  and  at  the  same  time 
the  most  likely  to  impose  upon  the  better  classes  of 
people  in  this  country;  but  it  differs  in  essence  not 
at  all  from  the  theories  of  the  more  ultra  classes  of 


SOCIALISM  AND  SOCIETY  157 

communists  and  socialists  who  believe  that  all  the 
productions  of  the  artisan,  of  the  mechanic,  or  of  the 
industrious  laborer  of  any  kind,  cannot  be  endowed 
with  the  character  of  personal  property,  and  that  the 
fact  that  they  have  made  them  gives  them  no  right 
to  the  exclusive  possession  or  use  of  these  products  of 
their  own  labor,  but  that  when  created  and  existing 
in  a  community,  all  the  individuals  of  which  it  is 
composed  have  an  equal  right  to  the  use  and  enjoy- 
ment of  these  results  of  personal  effort  and  exertion 
on  the  part  of  another. 

Carried  a  little  farther,  it  means  that  the  man 
whose  energy,  thrift,  close  economy,  hard  work,  skill, 
or  intellectual  superiority  has  enabled  him  to  acquire 
what  is  called  a  " fortune,"  which  implies  a  fine 
house,  a  carriage  and  horses,  works  of  art  and  beauty, 
and  who  surrounds  himself  with  all  the  comforts  and 
luxuries  of  a  happy  home,  is  a  robber,  and  an  unjust 
oppressor  of  the  poor  and  of  those  less  happily  sit- 
uated, because  he  does  not  divide  these  things  equally 
among  all  his  neighbors,  among  his  enemies  and  his 
friends  alike,  among  the  good  as  well  as  the  evil, 
among  the  industrious  and  the  lazy,  and  among  the 
criminal  and  the  pious.  Indeed,  the  concrete  result 
of  all  these  theories  in  their  logical  sequence  is  that 
there  shall  be  no  private  ownership  of  anything ;  that 
skill,  industry,  good  habits,  thrift,  or  wisdom  shall 
avail  nothing  to  the  possessor  of  them,  or  to  his  wife 
and  children,  though  he  may  by  long  continued  labor 
and  persistent  self-denial  have  acquired  the  means  for 
their  support,  protection,  and  comfort,  except  as  they 
shall  be  equally  distributed  among  the  entire  com- 


158  SAMUEL  FREEMAN  MILLER 

munity  of  which  he  happens  to  be  a  constituent  mem- 
ber. 

It  may  possibly  be  conceived  that  a  broad  philan- 
thropy in  some  Utopian  age,  founded  on  the  theory 
that  there  is  no  selfishness  in  human  nature,  and 
that  the  happiness  of  the  whole  community  is  equally 
dear  to  every  member  of  it  as  his  own  or  that  of  his 
family,  would  be  gratified  by  an  adoption  of  some  of 
the  principles  advocated  by  these  reformers;  but  in 
their  attempt  at  the  establishment  of  these  communis- 
tic doctrines  they  forget  that  no  such  race  of  human 
beings  now  exists,  or  ever  has  existed  upon  the  globe, 
as  that  upon  which  their  principles  are  formulated. 

Man  is  essentially  a  selfish  creature.  The  differ- 
ences in  the  degree  with  which  this  is  developed  are 
infinite.  Between  the  man  who  would  rob  or  murder 
his  neighbor  for  five  dollars,  and  men  who,  like  How- 
ard, or  those  missionaries  who  devote  themselves  to 
the  betterment  of  the  most  savage  portions  of  our 
race,  or  those  good  women,  like  Florence  Nightingale 
or  her  follower,  Clara  Barton,  in  all  of  whom  the 
dominating  purpose  of  life  is  to  do  good  to  humanity, 
the  chasm  is  very  wide  indeed.  But,  without  going 
into  an  ultimate  analysis  of  the  motives  which  direct 
human  action,  about  which  philosophers  have  so  bit- 
terly controverted  one  another,  when  we  consider  the 
working-out  of  the  practical  purposes  of  life  in  ref- 
erence to  the  methods  of  controlling  any  aggregation 
of  individuals  as  a  body  by  means  of  laws  or  regula- 
tions, it  must  be  admitted  that  there  is  a  vast  amount 
of  selfishness  and  personal  preference  deeply  imbed- 
ded in  the  nature  of  man,  a  strong  desire  to  better 


SOCIALISM  AND  SOCIETY  159 

his  own  condition  and  that  of  those  immediately  con- 
nected with  himself  by  ties  of  blood  or  affection, 
rather  than  that  of  the  world  at  large.  Indeed,  there 
is  no  doubt  that  egoism,  rather  than  altruism,  is  the 
controlling  principle  of  human  nature  and  the  main- 
spring of  its  action  as  it  exists  at  the  present  day. 

Another  principle  of  human  nature  which  is  ig- 
nored in  the  system  of  these  philosophers  is  that  man 
is  by  nature  fond  of  ease  and  averse  to  labor.  The 
conquests  which  he  has  made  of  the  surface  of  the 
earth  in  converting  it  from  a  wilderness  or  a  desert 
into  fertile  fields,  yielding  the  means  for  his  sub- 
sistence and  comfort,  and  the  victories  which  he  has 
achieved  over  the  beasts  of  the  field,  the  fowls  of  the 
air,  and  the  fishes  of  the  sea,  subjecting  them  to  his 
support  and  sustenance  and  compelling  them  to  min- 
ister to  his  pleasure,  are  the  results  of  a  necessity, 
and  not  of  a  willingness  to  encounter  the  necessary 
hardships  and  labors  for  the  pleasure  afforded  by 
them.  That  which  in  the  earlier  ages  of  the  world 
stimulated  man  to  overcome  the  trials  of  his  rude  en- 
vironment, which  made  him  a  fisherman,  a  hunter, 
and  a  tiller  of  the  soil,  still  constitutes  the  motive  pow- 
er which  drives  him  to  continued  improvements  in  the 
condition  of  the  world.  It  inspires  him  to  invention 
and  discovery,  and  to  all  the  progress  which  he  has 
made  in  his  methods  of  life  and  the  various  steps  for 
the  amelioration  of  the  race  which  have  lifted  it  from 
the  lowest  levels  of  degredation  to  the  high  plane  up- 
on which  it  moves  forward  to-day.  It  has  not  always, 
nor  has  it  often,  been  the  case  that  any  of  the  great 
steps  onward  in  the  march  of  progress  have  been  the 


160  SAMUEL  FREEMAN  MILLER 

result  of  a  pure  philanthropy  or  of  an  unselfish  love 
for  humanity.  They  have  not  come  from  any  moral 
instinct  for  doing  good,  or  arisen  from  any  natural 
spirit  of  industry  or  energy  implanted  in  the  human 
breast;  but  it  has  been  for  gain  or  profit  to  himself 
in  some  way,  either  by  the  acquisition  of  property  or 
by  the  advancement  in  social  position  afforded  by 
wealth  to  himself,  to  his  wife  or  children,  or  to  his 
father  or  mother,  or  others  to  whom  he  may  be  bound 
by  ties  of  friendship  or  affection.  For  these  objects 
men  labor  and  spend  their  days  in  toil.  These  sup- 
ply the  motive  which  leads  them  to  gather  the  prod- 
ucts of  their  energy,  and  not  the  native  love  of  the 
good  of  all  mankind. 

Why  does  the  enterprising  navigator  or  the  trav- 
eler penetrate  into  the  most  bleak  and  inhospitable 
regions,  circling  the  earth  and  opening  up  new  coun- 
tries and  new  peoples  to  the  knowledge  of  civiliza- 
tion? It  is  not  because  he  is,  ordinarily,  governed 
by  any  great  love  for  humanity  in  the  abstract,  but 
rather  to  gratify  a  selfish  curiosity  for  new  objects 
and  new  faces,  or  to  improve  his  condition  by  trading 
with  foreign  nations  and  tribes;  and  it  is  from  this 
desire  for  gain,  and  to  secure  some  pecuniary  advan- 
tage, that  springs  the  great  progress  which  has  been 
made  in  commerce,  in  navigation,  and  in  the  knowl- 
edge of  other  parts  of  the  world.  It  has  become  an 
axiom  of  modern  times  that  the  progress  of  trade, 
the  demands  of  wide-spread  commercial  relations,  and 
the  intercourse  brought  about  by  these  incitements  to 
human  enterprise  have  done  more  to  civilize  the 
world,  to  push  it  forward,  and  to  minister  to  the  hap- 


SOCIALISM  AND  SOCIETY  161 

piness  of  mankind  than  all  other  instrumentalities 
put  together.  Indeed,  he  who  believes  that  commerce 
and  trade  have  at  the  bottom  any  other  motive  than 
the  selfish  desire  for  gain  or  personal  aggrandize- 
ment is  better  fitted  for  the  next  world  than  for 
this. 

The  artist,  if  there  were  no  public  to  look  at,  ad- 
mire, and  pay  for  his  works,  would  doubtless  sit 
down  and  smoke  his  cigar  or  read  his  novel  in  the 
hours  which  he  now  devotes  to  the  finest  productions 
of  genius.  The  literary  man  fights  for  the  pecuniary 
rewards  of  his  labors  as  ardently  and  as  energetically 
as  the  mechanic  who  works  upon  his  job.  The  par- 
son who  ministers  the  consolations  of  religion  to  his 
congregation  desires,  or  is  stimulated  by,  his  com- 
pensatory salary  as  much  as  other  people. 

It  is  no  doubt  true  that  the  literary  classes,  the 
artists,  the  litterateurs,  or  the  religious  workers,  ex- 
pect, as  a  part  of  their  reward,  the  applause  of  the 
public,  and  the  honors  and  fame  which  may  follow 
their  labors,  as  well  as  the  approval  of  their  own  con- 
sciences, for  whatever  they  may  have  been  able  to  do 
for  the  good  of  humanity.  But  in  all  this  he  must 
be  indeed  a  visionary  man  who  cannot  see  that  the 
great  motive  for  the  best  deeds  and  the  best  work  of 
a  human  hand  and  brain  is  in  the  hope  of  some  per- 
sonal reward,  and  that  without  the  stimulus  of  some 
kind  of  gain  or  profit  or  happiness  which  shall  come 
to  the  individual  who  does  the  act,  it  would,  in  the 
great  majority  of  cases,  never  be  done.  It  follows  as 
a  conclusion  which  can  not  be  escaped,  that  when  you 
mingle  together  all  the  rewards  which  have  been 

11 


162  SAMUEL  FREEMAN  MILLER 

earned  by  the  industry  and  untiring  exertion  of  in- 
dividuals in  one  great  common  fund,  in  any  particu- 
lar neighborhood  or  community,  that  you  strike  down 
the  motive  power  which  is  necessary  to  the  continued 
improvement  of  society,  that  you  destroy  the  stimu- 
lus to  invention  which  produces  the  manufactured 
article  or  the  products  of  the  soil,  and  that  you  par- 
alyze the  mental  effort  of  the  human  mind  in  all  de- 
partments of  intellect  and  artistic  development  by 
cutting  off  the  motive  which  has  always  called  them 
into  action,  and  without  which  their  existence  would 
cease. 

I  have  no  doubt  myself,  and  indeed  it  cannot  be 
seriously  questioned,  that  if  the  whole  race,  or  any 
particular  community  or  government,  be  reduced  to 
one  uniform  level,  in  which  each  and  all  shall  be 
equally  interested  in  the  production,  in  the  distri- 
bution, and  in  the  use  of  what  man  digs  out  of  the 
earth,  produces  at  the  forge,  eliminates  from  the  raw 
material,  or  fashions  by  his  inventive  genius  or  the 
power  of  his  intellect,  you  make  a  dead  sea  of 
humanity  worse  than  that  upon  the  plains  of  Sodom. 
You  arrive,  to  be  sure,  at  a  perfect  equality,  but  it 
is  an  equality  of  laziness,  of  indolence,  and  of  the 
enjoyment  of  the  labor  of  others  where  no  provision 
is  made,  nor  can  be  made,  for  the  adequate  or  con- 
tinued supply  of  the  means  for  attaining  human  com- 
fort and  happiness.  If  you  deprive  the  industrious 
man  of  the  rewards  appropriate  to  the  effort  which 
he  puts  forth,  and  make  him  but  the  drudge  for  a 
neighborhood  or  community  in  general,  you  take 
away  from  him  his  main  incentive  to  exertion.  This 


SOCIALISM  AND  SOCIETY  163 

is  not  only  true  of  the  laboring  man  who  works  with 
his  hands,  but  it  is  also  true  of  the  genius  whose 
bright  thoughts  flash  through  the  darkness  of  human 
ignorance,  and  whose  wonderful  inventions  and  dis- 
coveries in  science  and  art  benefit  the  world. 

The  patent  system  of  the  United  States  is  one  of 
the  most  remarkable  evidences  that  men  of  the  high- 
est genius  and  greatest  talent  work  mainly  for  pe- 
cuniary reward,  or  for  some  other  compensation 
which  is  equally  stimulating  in  its  effect. 

This  is  not  the  place  to  comment  upon  the  vast 
benefits  that  have  been  conferred  upon  the  world  by 
the  inventions  and  discoveries  which  have  been  made 
in  this  country.  The  improvements  in  the  steam  en- 
gine with  its  many  modifications,  and  most  of  the 
elements  of  the  success  of  our  railroad  systems,  with 
the  varied  applications  of  electricity  to  the  telegraph, 
the  telephone,  and  all  of  the  numerous  implements 
connected  with  them,  have  all  been  patented,  and  this 
protection  has  been  sought  and  granted  as  the  ex- 
clusive right  of  the  men  whose  inventive  genius  pro- 
duced these  marvelous  helps  toward  the  lightening  of 
the  burden  of  human  toil.  But  while  this  system 
gives  to  them  as  the  reward  of  their  labors  the  ex- 
clusive right  to  use  or  sell  these  patented  productions, 
their  benefits  are  always  more  or  less  conferred  upon 
the  whole  human  race.  If  any  man  can  doubt  that 
these  inventions  and  discoveries  mainly  originate  in 
the  desire  for  personal  and  pecuniary  profit  or  re- 
ward, he  would  not  do  so  if  he  could  have  observed, 
as  I  have  done  during  a  period  of  twenty-five  years 
of  service  in  the  courts  of  the  United  States,  the  in- 


164  SAMUEL  FREEMAN  MILLER 

cessant  litigation  and  the  continuous  struggle  which 
has  been,  and  is  now,  going  on  for  these  exclusive  pe- 
cuniary rewards.  Their  authors  never  would  have 
spent  their  nights  in  vigils,  nor  their  days  in  toil,  if 
they  had  known  that  they  would  reap  no  personal 
benefit,  but  that  it  would  all  inure  simply  to  the 
public  good. 

I  am  not  by  nature  inclined  to  think  badly  of  the 
human  race;  on  the  contrary,  I  am  convinced  that 
there  is  in  it  vastly  more  of  good  than  of  evil,  and  my 
experience,  now  extended  beyond  the  three-score 
years  and  ten  allotted  to  man  by  the  psalmist,  has 
constantly  fostered  and  strengthened  in  me  a  belief 
in  the  goodness  of  human  nature.  But  I  should  be 
very  false  to  that  experience  if  I  did  not  recognize 
the  truth  of  the  statement  that  the  sources  of  the 
greatest  achievements,  even  of  those  best  calculated 
to  promote  the  well-being  of  society,  as  well  as  the 
motives  which  lie  at  the  foundation  of  the  produc- 
tions which  have  tended  to  its  greatest  good,  are 
largely  the  personal  and  selfish  interests  which  their 
authors  have  had  in  the  results  of  their  labors.  And 
I  have  no  doubt  that  the  success  of  those  principles 
regarding  the  conduct  of  society  which  seek  to  aggre- 
gate into  one  great  mass,  influenced  by  but  one  mo- 
tive, all  the  physical  elements  of  human  welfare  un- 
der the  general  ownership  and  control  of  that  race, 
or  the  separate  communities  into  which  it  might  di- 
vide, presenting  no  stimulus  for  personal  labor,  no 
hope  of  individual  aggrandizement,  and  no  security 
for  personal  property,  which  must  in  the  end  lead 
to  the  destruction  even  of  the  marital  relation,  mak- 


SOCIALISM  AND  SOCIETY  165 

ing  men  and  women  common  as  well  as  property, 
would  in  a  century  or  two  reduce  the  race  by  its  retro- 
grade action  into  clans  of  robbers,  murderers,  and 
thieves,  and  would  be  utterly  destructive  of  all  social 
happiness. 

After  all,  my  main  purpose  in  this  address  has  not 
been  so  much  to  discuss  the  doctrines  which  these  pro- 
fessed reformers  are  trying  to  impress  upon  society, 
or  to  point  out  to  you  the  pernicious  influence  which 
they  must  exercise,  as  to  warn  you  against  the  real 
danger  which  they  conceal.  The  opinions  which 
these  men  inculcate  are  naturally  attractive  to  the 
great  body  of  men  who  gain  their  living  by  daily  toil, 
for  it  has  always  been  considered  a  curse  denounced 
upon  man  that  he  should  earn  his  bread  by  the  sweat 
of  his  brow,  and  any  system  of  social  order  or  con- 
duct of  life  which  promises  to  relieve  humanity  from 
that  necessity  is  by  the  large  mass  of  mankind  eagerly 
welcomed. 

The  condition  of  the  world  at  the  present  time,  or 
at  least  of  the  more  highly  civilized  portions  of  it, 
is  very  different  from  that  of  times  past.  The  al- 
most universal  extension  of  education,  at  least  to 
some  degree,  and  the  general  diffusion  of  knowledge 
among  the  great  body  of  those  who  were  formerly  un- 
accustomed to  receive  it,  has  fitted  many  of  these 
radical  apostles  of  the  new  dispensation  with  emi- 
nently persuasive  powers.  Many  of  them  are  learned 
in  the  highest  sense  of  that  term;  many  are  filled 
with  classical  knowledge,  familiar  with  poetry,  and 
cultivated  in  all  the  amenities  of  social  life.  Trained 
in  journalism,  as  some  of  them  have  been,  and  capa- 


166  SAMUEL  FREEMAN  MILLER 

ble,  as  writers,  of  making  the  worse  appear  the  bet- 
ter cause,  they  project  themselves  into  the  political 
and  social  world  with  something  of  a  recklessness  and 
audacity  which  to  the  ordinary  mind  is  often  aston- 
ishing. Many  of  them,  it  is  to  be  hoped,  believe  in 
the  doctrines  which  they  preach;  but  this  only  makes 
them  the  more  dangerous,  as  it  adds  earnestness  and 
zeal  to  an  honest  purpose,  which  is  always  more  cal- 
culated to  make  an  impression  upon  those  who  listen. 

The  great  increase  of  wealth  in  modern  times,  and 
its  frequently  unequal  distribution,  present  an  op- 
portune field  for  their  operations,  predisposing  large 
numbers  of  those  who  suffer  from  this  inequality  to 
adopt  any  system  which  may  be  supposed  capable  of 
affording  relief.  In  the  large  cities  of  this,  as  well  as 
all  other  countries,  the  palaces  of  the  rich  are  sur- 
rounded by  the  hovels  of  the  poor ;  the  glaring  lights 
of  gas  and  electric  lamps  illuminating  for  the  wealthy 
their  hours  of  hilarity  and  festivity  shine  down  upon 
the  tenements  of  the  lowly  and  the  poverty  stricken, 
and  while  the  more  favored  few  have  all  that  is  best 
in  life  in  the  way  of  pleasure  and  enjoyment,  another 
and  a  much  larger  class  of  beings  a  few  hundred 
yards  away,  or  across  the  street,  may  be  languishing 
in  misery,  burdened  by  poverty,  and  tortured  by  dis- 
ease for  which  they  have  not  the  means  to  provide 
the  remedy. 

Undoubtedly  these  are  not  pleasant  things  for  the 
lover  of  humanity  to  witness,  and  they  certainly  pre- 
sent the  strongest  inducement  for  the  introduction 
of  such  real  and  genuine  reforms  in  the  fabric  of  our 
social  life  as  shall  tend  to  ameliorate  the  hardships  of 


SOCIALISM  AND  SOCIETY  167 

want  and  to  prevent  all  needless  suffering;  but  the 
hasty  and  ill-considered  suggestion  that  this  must  all 
be  equalized  at  once,  without  any  reflection  as  to  what 
shall  come  after  the  accumulated  means  for  the  com- 
fort and  happiness  of  mankind  have  been  dissipated, 
if  carried  out  in  any  of  the  reckless  methods  which 
have  been  proposed,  is  likely  to  lead  to  a  worse  evil 
than  that  which  is  sought  to  be  removed.  Neverthe- 
less, a  comparison  of  these  great  differences  which 
we  see  everywhere  not  infrequently  disposes  a  large 
class  of  the  community,  and  perhaps  the  most  nu- 
merous, especially  in  our  large  cities,  to  accept  the 
scheme  which  seems  to  offer  immediate  relief,  at 
any  cost,  and  without  any  regard  to  the  ultimate 
consequences  of  such  action. 

It  is  in  these  places  and  under  such  circumstances 
that  the  socialist  and  the  communist  finds  ready  at 
hand  the  materials  for  the  successful  operation  of 
his  schemes;  it  is  from  the  discontented,  the  unfortu- 
nate, and  the  poor  that  most  of  his  converts  are  made. 
Many  of  those  who  are  active  in  the  leadership  of 
these  so-called  reforms  are  but  little  understood  in 
this  country.  Born  and  raised  under  the  despotic 
and  oppressive  governments  of  Europe,  forbidden  to 
express  their  views  in  regard  to  the  regulation  of  so- 
cial or  political  matters,  or  to  try  to  enforce  them 
even  by  peaceable  means,  arrested  whenever  they 
speak  out  boldly,  imprisoned,  banished,  followed  from 
one  country  to  another  only  to  be  objects  of  suspicion 
and  police  surveillance,  they  acquire  in  this  way  a 
love  of  a  wandering  life  and  a  bitter  antagonism 
towards  all  whose  circumstances  enable  them  to  live 


168  SAMUEL  FREEMAN  MILLER 

more  happily  than  themselves.  Many  of  them  finally 
emigrate  to  this  country,  where  the  paradise  of  their 
hopes  is  supposed  to  be  found.  Here  they  can  talk 
as  much  as  they  please  without  fear  of  punishment. 
They  may  address  crowds  collected  upon  the  street 
corner,  and  in  private  or  in  public,  by  speeches  or  in 
the  public  prints,  they  can  abuse,  to  their  heart's  con- 
tent, all  government  in  which  one  man  may  be  found 
to  be  prosperous  and  another  man  poor,  and  even  in- 
veigh against  all  social  order  or  governmental  regu- 
lation. They  come  here  and  form  clubs  and  asso- 
ciations; they  meet  at  night  and  in  secluded  places; 
they  get  together  large  quantities  of  deadly  weapons ; 
they  drill  and  prepare  themselves  for  organized  war- 
fare; they  stimulate  riots  and  invasions  of  the  pub- 
lic peace;  they  glory  in  strikes,  and,  whatever  they 
may  originally  have  been  in  the  way  of  philanthro- 
pists, they  rapidly  degenerate  into  the  haters  of  pros- 
perity and  happiness  on  the  part  of  those  who  are 
more  fortunate  than  themselves.  If  they  incite  a 
riot  or  break  the  laws  which  protect  the  public  wel- 
fare, or  resist  an  officer  of  the  law  in  the  discharge 
of  his  duty,  and  are  imprisoned  from  one  to  twelve 
months,  it  is  generally  an  improvement  in  their  con- 
dition, for  in  the  public  prisons  they  are  often  better 
fed  and  better  housed  than  they  were  when  left  free 
to  depend  upon  their  own  resources.  If  these  men 
were  ignorant,  they  might  be  despised;  but,  as  I  have 
already  said,  their  leaders  are  not  only  learned,  but 
men  of  intelligence,  speaking  and  writing  many  lan- 
guages, familiar  with  the  world,  courageous  and  des- 
perate. 


SOCIALISM  AND  SOCIETY  169 

I  am  addressing  an  audience  mainly  from  the  state 
of  Iowa,  which,  beyond  any  other,  has  a  people  en- 
gaged in  a  prosperous  agriculture,  with  more  good 
farms  and  well-to-do  farmers  in  proportion  to  its 
population  than  any  state  in  the  union,  having  no 
large  city  where  the  disorderly  elements  that  seem  to 
gravitate  to  such  centres  can  gather  and  become  for- 
midable. It  is  a  community  where  almost  every  man 
owns,  or  aspires  to  own,  his  plot  of  ground,  and  to 
produce  out  of  that  farm  a  comfortable  subsistence 
for  himself  and  family.  Among  this  population  are 
all  the  elements  of  happiness  and  prosperity,  and 
good  government  and  love  of  order  are  developed  to 
as  high  a  degree  as  anywhere  in  the  world.  It  is  not 
because  I  apprehend  that  the  corrupting  theories 
which  I  have  been  discussing  are  at  all  likely  to  suc- 
ceed in  your  midst  that  I  have  taken  this  occasion  to 
direct  your  attention  to  their  dangerous  and  debasing 
tendencies,  but  for  the  reason  that  it  is  to  those  who 
live  in  this  and  the  surrounding  states,  in  which  agri- 
culture, with  all  its  branches,  forms  the  great  busi- 
ness of  the  people,  that  we  are  to  look  for  the  final 
defence  to  be  made  against  these  agrarian  and  de- 
structive doctrines. 

I  address  myself,  then,  not  only  to  the  people  of 
Iowa,  but  also  to  the  intelligent  citizens  of  this  great 
northwestern  section  of  our  country,  whose  fields  and 
flocks  are  the  support  of  a  virtuous  population,  and 
whose  surplus  helps  to  sustain  the  over-crowded  king- 
doms of  Europe.  And  I  wish  especially  to  speak  to 
the  young  men  whom  the  state  has  assisted  to  edu- 
cate here,  who  it  is  to  be  hoped  have  been  grounded 


170  SAMUEL  FREEMAN  MILLER 

in  sound  principles  of  political  and  social  economy, 
and  who  start  out  in  life  with  only  its  most  roseate 
views  before  them,  in  order  that  I  may  warn  them 
while  it  is  yet  time  of  the  insidious  danger  which  is 
gradually  spreading  and  threatening  the  peace  of  the 
whole  country.  I  desire  to  caution  them  against  the 
subtle  poison  which  is  being  instilled  into  society,  and 
which  if  not  counteracted  will  assuredly  effect  its  de- 
struction; to  call  upon  them  to  guard  and  protect  the 
inheritance  received  from  their  forefathers,  and  to 
impress  upon  their  minds  the  fact  that  changes  in 
the  order  and  conduct  of  human  institutions  are  not 
always  a  growth  toward  a  better  condition  of  things. 

I  do  not  mean  to  say  that  all  things  which  are  pre- 
sented as  tending  to  better  the  condition  of  humanity 
should  not  be  examined  and  considered  candidly  and 
dispassionately,  but  I  do  say  that  when  you  have  so 
examined  and  considered  them,  and  you  find  that  the 
new  doctrines  are  utterly  inconsistent  with  the  good 
old-fashioned  ideas  of  honesty,  fair-dealing,  industry, 
thrift,  and  a  just  regard  for  the  security  of  the  re- 
sults of  individual  labor,  you  may  be  sure  that  they 
are  wicked  and  dangerous  in  their  tendency,  and  you 
should  not  allow  them  to  sap  your  faith  in  the  sound- 
ness of  the  elements  upon  which  our  old  and  well- 
tried  social  organization  has  been  erected. 

There  is  an  honesty  applicable  to  all  the  transac- 
tions of  human  life;  this  is  not  often  difficult  to  as- 
certain. There  is  a  justice  between  man  and  man, 
which,  when  candidly  sought  for  by  a  fair-minded 
person,  can  always  be  discerned.  There  is,  and  ought 
to  be,  in  every  well-balanced  mind  a  just  regard  for 


SOCIALISM  AND  SOCIETY  171 

the  true  relations  which  he  sustains  and  the  duties 
which  he  owes  to  social  life,  and  there  should  be  a 
firm  purpose  to  do  one's  whole  duty  under  all  cir- 
cumstances and  in  all  conditions  lying  at  the  founda- 
tion of  your  conduct  towards  all  men. 

If  in  your  progress  through  life  you  keep  these 
aims  and  purposes  fairly  before  your  mind,  if  you 
remember  always  these  old-fashioned  notions  in  which 
you  have  been  brought  up,  and  do  not  yield  or  for- 
sake them  until  you  are  convinced  that  you  have  dis- 
covered some  better  principles  for  your  guidance 
through  life,  you  may  be  assured  that  you  will  always 
be  in  the  safe  road,  and  upon  that  way  which  will  the 
most  certainly  lead  to  the  approbation  of  your  own 
consciences,  the  approval  of  your  fellow-men,  and  the 
advancement  of  the  community  in  which  you  live. 


APPENDIX   D 


APPENDIX    D 

A  CALENDAR  OF  THE  OPINIONS  OF  JUSTICE 
SAMUEL  F.  MILLER1 

1862 — DECEMBER  TERM 

*Trustees  of  the  Wabash  &  Erie  Canal  Co.  v.  Beers. — 

2  Black  448. 

Lindsey  et  al.  v.  Hawes  et  al. — 2  Black  554. 
Russell  v.  Ely  et  al.— 2  Black  575. 
The  United  States  v.  Chaboya.— 2  Black  593. 
Rothwell  v.  Dewees.— 2  Black  613. 

1863 — DECEMBER  TERM 

Gaylords  v.  Kelshaw  et  al. — 1  Wallace  81. 
Burr  v.  The  D.  M.  R.  R.  &  Navigation  Co.— 1  Wal- 
lace 99. 


1  This  calendar  of  judicial  opinions  includes  references  to  all 
cases  decided  in  the  Supreme  Court  of  the  United  States  in 
which  Justice  Miller's  opinions  are  given  from  1862  to  1890.  It 
does  not  include  the  opinions  written  by  Justice  Miller  in 
cases  tried  in  the  Circuit  Court.  These  may  be  found  in  (1) 
a  volume  entitled,  Cases  Determined  in  the  United  States  Cir- 
cuits for  the  Eighth  Circuit.  By  the  Hon.  Samuel  F.  Miller. 
Reported  by  James  M.  Woolworth;  (2)  Dillon's  Circuit  Court 
Reports;  (3)  McCrary's  Circuit  Court  Reports;  and  (4)  Fed- 
eral Cases  and  The  Federal  Reporter. 

*  The  cases  marked  with  a  star  relate  to  Constitutional  Law. 


176  SAMUEL  FREEMAN  MILLER 

*Bridge  Proprietors  v.  Hoboken  Co. — 1  Wallace  116. 
Jones  et  al.  v.  Morehead. — 1  Wallace  155. 
Sweeny  et  al.  v.  Easter. — 1  Wallace  166. 
Insurance  Companies  v .  Wright. — 1  Wallace  456. 
Rodrigues  v .  United  States.— 1  Wallace  582. 
Blossom  v.  Railroad  Company. — 1  Wallace  655. 
United  States  v.  Vallejo.— 1  Wallace  658. 
United  States  v.  Morillo.— 1  Wallace  706. 

1864 — DECEMBER  TERM 

*Miles  v.  Caldwell.— 2  Wallace  35. 
Brooks  v.  Martin. — 2  Wallace  70. 
Marine  Bank  v.  Fulton  Bank.— 2  Wallace  252. 
Harvey  v.  Tyler.— 2  Wallace  328. 
Kutter  v.  Smith.— 2  Wallace  491. 
Levy  Court  v.  Coroner. — 2  Wallace  501. 
Railroad  Co.  v.  Soutter.— 2  Wallace  510. 
Minnesota  Co.  v.  St.  Paul  Co.— 2  Wallace  609. 
Ex  parte  Fleming.— 2  Wallace  759. 

1865 — DECEMBER  TERM 

Lovejoy  v.  Murray. — 3  Wallace  1. 

Walker  v.  Transportation  Co.— 3  Wallace  150. 

The  Cornelius.— 3  Wallace  214. 

The  Convoy's  Wheat.— 3  Wallace  225. 
*Buck  v.  Colbath.— 3  Wallace  334. 
*United  States  v.  Holliday—  3  Wallace  407. 

The  Mohawk.— 3  Wallace  566. 

United  States  v.  Scott.— 3  Wallace  642. 

United  States  v.  Murphy.— 3  Wallace  649. 

Dehon  v.  BernaL— 3  Wallace  774. 


CALENDAR   OF   OPINIONS  177 

1866 — DECEMBER  TERM 

United  States  v.  Hoffman.— 4  Wallace  158. 
*Railroad  Company  v .  Rock. — 4  Wallace  177. 

Leftwitch  v .  Lecanu. — 4  Wallace  187. 

Mayor  v.  Sheffield. — 4  Wallace  189. 

Rutherford  v.  Geddes.— 4  Wallace  220. 

The  Hine  v.  Trevor.— 4  Wallace  555. 

United  States  v.  Le  Baron.— 4  Wallace  642. 

United  States  v.  Weed  et  al.— 5  Wallace  62. 

Woodworth  v.  Insurance  Company. — 5  Wallace  87. 

Ex  parte  the  Milwaukee  R.  R.  Co.— 5  Wallace  188. 
*Green  v.  Van  Buskirk.— 5  Wallace  307. 

The  Hampton.— 5  Wallace  372. 

De  Groot  v.  United  States.— 5  Wallace  419. 

Railroad  Co.  v.  Soutter  and  Knapp. — 5  Wallace  660. 

Deery  v.  Cray.— 5  Wallace  795. 

Lee  v.  Dodge.— 5  Wallace  808. 

Ex  parte  the  Milwaukee  Railroad  Co. — 5  Wallace 
825. 

1867 — DECEMBER  TERM 

*Crandall  v.  State  of  Nevada.— 6  Wallace  35. 

The  Watchful.— 6  Wallace  91. 

United  States  v.  Adams.— 6  Wallace  101. 

Rector  v.  Ashley .—6  Wallace  142. 

Agricultural  Co.  v.  Pierce  Co.— 6  Wallace  246. 
*Barney  v.  Baltimore  City.— 6  Wallace  280. 

Mussina  v.  Cavazos. — 6  Wallace  355. 

The  Victory.— 6  Wallace  382. 

Foley  v.  Smith.— 6  Wallace  492. 

Gardner  v.  The  Collector.— 6  Wallace  499. 

12 


178  SAMUEL  FREEMAN  MILLER 

Clark  v.  United  States.— 6  Wallace  543. 
Insurance  Co.  v.  Hallock. — 6  Wallace  556. 

1868 — DECEMBER  TERM. 

Insurance  Company  v.  Tweed. — 7  Wallace  44. 

Kendall  v.  United  States.— 7  Wallace  113. 

Silver  v.  Ladd  —  7  Wallace  219. 

Mead  v.  Ballard.— 7  Wallace  290. 

Edmonson  v.  Bloomshire. — 7  Wallace  306. 
*Gaines  v.  Thompson.— 7  Wallace  347. 

Generes  v.  Bonnemer. — 7  Wallace  564. 
*The  Floyd  Acceptances.— 7  Wallace  666. 

Garrison  v.  United  States.— 7  Wallace  688. 
*United  States  v.  Speed.— 8  Wallace  77. 

Nailor  v.  Williams.— 8  Wallace  107. 
*Woodruff  v.  Parham.— 8  Wallace  123. 
*Hinson  v.  Lott.— 8  Wallace  148. 
*Gibbons  v.  United  States.— 8  Wallace  269. 

Gibson  v.  Chouteau. — 8  Wallace  314. 

Gilbert  &  Secor  v.  United  States.— 8  Wallace  358. 

Avendano  v.  Gay.— 8  WaUace  376. 

Bradley  v.  Rhines'  Administrators. — 8  Wallace  393. 

Allen  v.  Killinger.— 8  WaUace  480. 

1869 — DECEMBER  TERM 

McGoon  v.  Scales.— 9  Wallace  23. 

Basset  v.  United  States.— 9  Wallace  38. 
"United  States  v.  Keehler.— 9  Wallace  83. 

Railroad  Company  v.  Smith. — 9  Wallace  95. 

Norris  v.  Jackson. — 9  Wallace  125. 
*Frisbie  v.  Whitney.— 9  WaUace  187. 

Steamboat  Burns.— 9  Wallace  237. 


CALENDAR  OF   OPINIONS  179 

Barney  v.  Schmeider. — 9  Wallace  248. 

Public  Schools  v.  Walker.— 9  Wallace  282. 
*National  Bank  v .  Commonwealth. — 9  Wallace  353. 

The  Northern  Belle.— 9  Wallace  526. 
*Litchfield  v.  Register  &  Receiver. — 9  Wallace  575. 

The  Suffolk  County.— 9  Wallace  651. 

Wise  v.  Allis.— 9  Wallace  737. 

Carpenter  v.  Williams.— 9  WaUace  785. 

The  Davis.— 10  Wallace  15. 

Bates  v.  Equitable  Insurance  Co. — 10  Wallace  33. 

Railroad  Company  v.  Reeves. — 10  Wallace  176. 

Deery  v.  Cray.— 10  Wallace  263. 

1870 — DECEMBER  TERM 

Cooper  v.  Reynolds.— 10  Wallace  308. 

Masterson  v .  Herndon. — 10  Wallace  416. 

Tappan  v.  Beardsley. — 10  Wallace  427. 

Yates  v.  Milwaukee. — 10  Wallace  497. 
*Liverpool  Ins.  Co.  v.  Massachusetts. — 10  Wallace  556 

Stagg  v.  Insurance  Co. — 10  Wallace  589. 
*Virginia  v.  West  Virginia. — 11  Wallace  39. 

Smith  v.  Sac  County.— 11  Wallace  139. 

Case  v.  Terrell.— 11  Wallace  199. 
*Tyler  v.  Defrees.— 11  Wallace  331. 

Moncure  v.  Zunts. — 11  Wallace  416. 

United  States  v.  Howell.— 11  Wallace  432. 

Eureka  Co.  v.  Bailey  Co.— 11  Wallace  488. 

Mann  v.  Rock  Island  Bank.— 11  Wallace  650. 

United  States  v.  Child  &  Co.— 12  Wallace  232. 

Germain  v.  Mason.— 12  Wallace  259. 
*Kearney  v.  Case.— 12  Wallace  275. 
*Knox  v.  Exchange  Bank.— 12  Wallace  379. 


180  SAMUEL  FREEMAN  MILLER 

*Northern  Railroad  v.  The  People.— 12  Wallace  384. 
Insurance  Companies  v.  Boykin. — 12  Wallace  433. 
Walker  v.  Dreville.— 12  Wallace  440. 

1871 — DECEMBER  TERM 

*Curtis  v.  Whitney.— 13  Wallace  68. 

Johnson  v.  Towsley. — 13  Wallace  72. 

Samson  v .  Smiley. — 13  Wallace  91. 

Semmes  v.  Hartford  Insurance  Co. — 13  Wallace  158. 

Pumpelly  v.  Green  Bay  Co.— 13  Wallace  166. 

Insurance  Company  v.  Wilkinson. — 13  Wallace  222. 

Gay's  Gold.— 13  Wallace  358. 

Tucker  v.  Spalding.— 13  Wallace  453. 
*Dooley  v.  Smith.— 13  Wallace  604. 

Watson  v.  Jones.— 13  Wallace  679. 
*Cockroft  v.  Vose. — 14  Wallace  5. 
*Kennebec  R.  Co.  v.  Portland  R.  Co.— 14  Wallace  23. 

Bartemeyer  v.  Iowa. — 14  Wallace  26. 

Ward  v.  United  States.— 14  Wallace  28. 

Traders  Bank  v.  Campbell.— 14  Wallace  87. 

Mahan  v.  United  States.— 14  Wallace  109. 

Foulke  v.  Zimmerman. — 14  Wallace  113. 

Hook  v.  Payne. — 14  Wallace  252. 

The  Laura.— 14  Wallace  336. 

Mowry  v.  Whitney.— 14  Wallace  434. 

Turner  v.  Smith.— 14  Wallace  553. 

Gregg  v.  Moss. — 14  Wallace  564. 

The  Key  City.— 14  Wallace  653. 
*Delmas  v.  Insurance  Co. — 14  Wallace  661. 

1872 — DECEMBER  TERM 
The  John  Griffin.— 15  Wallace  29. 


CALENDAR   OF   OPINIONS  181 

Smoot's  Case.— 15  Wallace  36. 

Kimball  v.  West.— 15  Wallace  377. 

Adger  v.  Alston. — 15  Wallace  555. 

Partridge  v.  The  Ins.  Co.— 15  Wallace  573. 

Commercial  Bank  v.  Rochester. — 15  Wallace  639. 

Cammack  v.  Lewis. — 15  Wallace  643. 

Insurance  Company  v.  Lyman. — 15  Wallace  664. 
*Slaughter  House  Cases.— 16  Wallace  36. 
*Bradwell  v.  The  State.— 16  Wallace  130. 

Mahan  v.  United  States.— 16  Wallace  143. 

The  Collector  v.  Doswell  &  Co.— 16  Wallace  156. 

Peabody  v.  Stark.— 16  Wallace  240. 

Railway  Co.  v.  Prescott— 16  Wallace  603. 

Williams  v.  Baker.— 17  Wallace  144. 

1873— OCTOBER  TERM 

Stitt  v.  Huidekopers.— 17  Wallace  384. 

United  States  v.  Henry.— 17  Wallace  405. 

Moore  v.  Huntington. — 17  Wallace  417. 

Adams  v.  Burke. — 17  Wallace  453. 

Wilson  v.  City  Bank.— 17  Wallace  473. 

Eldred  v.  Bank.— 17  Wallace  545. 

Harrell  v.  Beall.— 17  Wallace  590. 

Manufacturing  Co.  v.  United  States. — 17  Wallace 
592. 

Sawyer  v.  Hoag. — 17  Wallace  610. 

Smiths  v.  Shoemaker.— 17  Wallace  630. 

University  v.  Finch.— 18  Wallace  106. 
*Bartemeyer  v.  Iowa. — 18  Wallace  129. 
*Ex  parte  Lange.— 18  Wallace  163. 

Lamb  v.  Davenport. — 18  Wallace  307. 

Ex  parte  State  Insurance  Co. — 18  Wallace  417. 


182  SAMUEL  FREEMAN  MILLER 

Clarke  v.  Boorman's  Executors. — 18  Wallace  493. 

Town  of  Ohio  v.  Marcy.— 18  Wallace  552. 

Espy  v.  Bank  of  Cincinnati.— 18  Wallace  604. 

Grant  v.  Strong.— 18  Wallace  623. 

Bartholow  v.  Bean.— 18  Wallace  635. 

Salomon  v.  United  States.— 19  Wallace  17. 

Zantzingers  v.  Gunton. — 19  Wallace  32. 

Railroad  Company  v.  Church. — 19  Wallace  62. 

The  Lucille.— 19  Wallace  73. 

Ryan  et  al.  v.  United  States.— 19  Wallace  514. 

Insurance  Company  v.  Seaver. — 19  Wallace  531. 

Packet  Company  v.  Sickles.— 19  Wallace  611. 

Insurance  Company  v.  Fogarty. — 19  Wallace  640. 
*Heine  v.  The  Levee  Commissioners. — 19  Wallace  655. 

National  Bank  of  Wash.  v.  Texas.— 20  Wallace  72. 
*Stockdale  v.  Insurance  Companies. — 20  Wallace  323. 

1874 — OCTOBER  TERM 

*Ferris  v.  Higley.— 20  Wallace  375. 

Lyon  v.  Pollard.— 20  Wallace  403. 
*Sprott  v.  United  States.— 20  Wallace  459. 

Ambler  v.  Whipple.— 20  Wallace  546. 
*Cannon  v.  New  Orleans. — 20  Wallace  577. 

Murdock  v.  City  of  Memphis.— 20  Wallace  590. 

Railroad  Company  v .  Maryland. — 20  Wallace  643. 

Mathews  v.  McStea.— 20  Wallace  646. 
*Loan  Association  v.  Topeka. — 20  Wallace  655. 

Vermilye  &  Co.  v.  Adams  Ex.  Co.— 21  Wallace  138. 

Bailey  v.  Glover  et  al.— 21  Wallace  342. 
*Atlee  v.  Packet  Co.— 21  Wallace  389. 

Little  v.  Alexander.— 21  Wallace  500. 

Wood  v.  Bailey.— 21  Wallace  640. 


CALENDAR  OF  OPINIONS  183 

House  et  al.  v.  Mullen.— 22  Wallace  42. 
Pleasants  v.  Fant  —  22  Wallace  116. 
In  re  Chiles.— 22  Wallace  157. 
Sweeney  et  al.  v.  Lomme. — 22  Wallace  208. 
United  States  v.  Farragut— 22  Wallace  406. 
*Railway  Company  v.  McShane. — 22  Wallace  444. 
Hunnewell  v.  Cass  County. — 22  Wallace  464. 
Ambler  v.  Whipple.— 23  Wallace  278. 

1875— OCTOBER  TERM 

Western  Union  Telegraph  Co.  v.  W.  &  Atl.  E.  E.  Co. 

—91  United  States  283. 

Dow  v.  Humbert  et  al.— 91  United  States  294. 
Stone  v.  Towne  et  al. — 91  United  States  341. 
United  States  v.  McKee  et  al.— 91  United  States  442. 
Eyester  v.  Gaff  et  al.— 91  United  States  521. 
Dainese  v.  Cooke  et  al.— 91  United  States  580. 
Woodruff  et  al.  v.  Hough  et  al.— 91  United  States 

596. 
Phillips  etc.  Const.  Co.  v.  Seymour  et  al. — 91  United 

States  646. 
Nichols,  Assignee  v.  Eaton  et  al. — 91  United  States 

716. 
Cheatham  et  al.  v.  United  States.— 92  United  States 

85. 
Baker  et  al.,  Assignees  v.  White. — 92  United  States 

176. 
*Henderson  et  al.  v.  Mayor  of  New  York  et  al.— 92 

United  States  259. 

*Chy  Lung  v.  Freeman  et  al.— 92  United  States  275. 
Eiver  Bridge  Co.  v.  Kansas  Pac.  Ey.  Co.— 92  United 

States  315. 


184  SAMUEL  FREEMAN  MILLER 

Piedmont  etc.  Life  Insurance  Co.  v .  Ewing. — 92  Uni- 
ted States  377. 

Terry  v.  Commercial  Bank  of  Alabama. — 92  United 
States  454. 

City  of  St.  Louis  v.  United  States.— 92  United  States 

462. 
*State  Railroad  Tax  Cases.— 92  United  States  575. 

Burdell  v.  Denig.— 92  United  States  716. 

Hammond  et  al.  v.  Mason  etc.  Organ  Co. — 92  United 
States  724. 

1876 — OCTOBER  TERM 

Terry  v.  Abraham  et  al.— 93  United  States  38. 
O'Hara  et  al.  v.  MacConnell  et  al. — 96  United  States 

150 

*French  v.  Fyan  et  al.— 93  United  States  169. 
Sherman  v.  Buick.— 93  United  States  209. 
Homer  v.  Henning  et  al.— 93  United  States  228. 
Dalton  v.  Jennings.— 93  United  States  271. 
Smith  et  al.  v.  Gaines.— 93  United  States  341. 
Cockle  et  al.  v.  Flack  et  al.— 93  United  States  344. 
Wiggings  v.  People  etc.  in  Utah. — 93  United  States 

465. 

Huff  v.  Doyle  et  al.— 93  United  States  558. 
Omaha  v.  Hammond. — 94  United  States  98. 
Mackall  v.   Chesapeake  etc.   Canal  Co. — 94  United 

States  308. 
Howell  v .  Western  Railroad  Co. — 94  United  States 

463. 

Hyde  v.  Woods.— 94  United  States  523. 
Waite  v.  Dowley—  94  United  States  527. 
Merrill  v.  Yeomans.— 94  United  States  568. 


CALENDAR   OF   OPINIONS  185 

United  States  v.  Joseph. — 94  United  States  614. 
Corcoran  v .  Chesapeake  etc.  Canal  Co. — 94  United 

States  741. 

*Forbes  v.  Gracey.— 94  United  States  762. 
Davis  v.  Indiana. — 94  United  States  792. 

1877— OCTOBER  TERM 

Phipps  v .  Sedgwick. — 95  United  States  3. 
*McMillen  v.  Anderson.— 95  United  States  37. 

Chouteau  v.  United  States.— 95  United  States  61. 
*New  Jersey  v.  Yard.— 95  United  States  104. 
*Blount  v.  Windley.— 95  United  States  173. 

Bates  v.  Clark.— 95  United  States  204. 
•Colorado  Co.  v.  Commissioners. — 95  United  States 
259. 

Alvord  v.  United  States.— 95  United  States  356. 

Briges  v.  Sperry. — 95  United  States  401. 
*Pound  v.  Turck.— 95  United  States  459. 

Ins.  Companies  v.  Thompson. — 95  United  States  547. 

United  States  v.  Meigs.— 95  United  States  748. 

Alexandria  v.  Fairfax. — 95  United  States  774. 

United  States  v.  Clark.— 96  United  States  37. 
*Davidson  v.  New  Orleans. — 96  United  States  97. 

Ferguson  v.  McLaughlin. — 96  United  States  174. 

Werner  v.  King.— 96  United  States  218. 
•Wisconsin  v.  Duluth.— 96  United  States  379. 

McPherson  v.  Cox.— 96  United  States  404. 

Walker  v.  Johnson.— 96  United  States  424. 

Atherton  v.  Fowler.— 96  United  States  513. 

Moore  v.  Bobbins.— 96  United  States  530. 

Brine  v.  Insurance  Co. — 96  United  States  627. 

Pratt  v.  Pratt.— 96  United  States  704. 


186  SAMUEL  FREEMAN  MILLER 

Shillaber  v.  Robinson. — 97  United  States  68. 
Eldridge  v.  Hill.— 97  United  States  92. 
Allis  v.  Insurance  Co. — 97  United  States  144. 
Godfrey  v.  Terry.— 97  United  States  171. 
United  States  v.  McKee.— 97  United  States  233. 
Chaboya  v.  Umbarger. — 97  United  States  280. 
Emigrant    Co.    v.   County   of   Wright. — 97    United 

States  339. 
Martin  v.  Marks.— 97  United  States  345. 

1878 — OCTOBER  TEEM 

Pettigrew  v.  United  States.— 97  United  States  385. 

Kendig  v.  Dean.— 97  United  States  423. 
*Keith  v.  Clark.— 97  United  States  455. 
*Cook  v.  Pennsylvania.— 97  United  States  566. 

United  States  v.  Throckmorton.— 98  United  States 
61. 

Orvis  v.  Powell.— 98  United  States  176. 

Scull  v.  United  States.— 98  United  States  410. 

United  States  v.  Baltimore.— 98  United  States  424. 

Foster  v.  Mora.— 98  United  States  425. 

United  States  v.  Benecke.— 98  United  States  447. 

United  States  v.  Irvine.— 98  United  States  450. 
*United  States  v.  U.  P.  R.  R.  Co.— 98  United  States 
569. 

Quinn  v.  United  States.— 99  United  States  30. 

Grafton  v.  Cummings. — 99  United  States  100. 

Biebinger  v.  Cont'l  Bank.— 99  United  States  143. 

Burt  v.  Panjaud.— 99  United  States  180. 

Atwood  v.  Weems.— 99  United  States  183. 

King  v.  United  States.— 99  United  States  229. 

Campbell  v.  Rankin.— 99  United  States  261. 


CALENDAR   OF   OPINIONS  187 

*University  v.  People.— 99  United  States  309. 
Van  Norden  v.  Morton.— 99  United  States  378. 
United  States  v.  Germaine.— 99  United  States  508. 
Kartell  v.  Tilghman.— 99  United  States  547. 

1879— OCTOBER  TEEM 

United  States  v.  Hirsch.— 100  United  States  33. 
*Trade  Mark  Cases.— 100  United  States  82. 

United  States  v.  Curtis.— 100  United  States  119. 

Hinckley  v.  Railroad  Co.— 100  United  States  153. 

Parish  v.  United  States.— 100  United  States  500. 

United  States  v.  Bowen.— 100  United  States  508. 

People  v.  Weaver.— 100  United  States  539. 

Williams  v.  Weaver.— 100  United  States  547. 

Meeks  v.  Olpherts.— 100  United  States  564. 

Railroad  Co.  v.  Collector.— 100  United  States  595. 

Savings  Bank  v.  Creswell.— 100  United  States  630. 

Thomas  v.  Railroad  Co.— 101  United  States  71. 

Pelton  v.  National  Bank.— 101  United  States  143. 

Worthington  v.  Mason. — 101  United  States  149. 
*Cummings  v.  National  Bank. — 101  United  States  153 

Broder  v.  Water  Company.— 101  United  States  274. 
*Langford  v.  United  States.— 101  United  States  341. 

Gunton  v.  Carroll.— 101  United  States  426. 

Brooks  v.  Railway  Company. — 101  United  States  443 

Marquez  v.  Frisbie.— 101  United  States  473. 

Lovell  v.  Davis.— 101  United  States  541. 

Nougue  v.  Clapp. — 101  United  States  551. 

United  States  v.  Dawson.— 101  United  States  569. 

Meyer  v.  Hornby.— 101  United  States  728. 

Young  v.  Bradley.— 101  United  States  782. 

United  States  v.  Glamorgan.— 101  United  States  822. 


188  SAMUEL  FREEMAN  MILLER 

1880— OCTOBER  TERM 

*Langford  v.  Monteith  — 102  United  States  145. 
Mining  Co.  v.  Consolidated  Mining  Co. — 102  United 

States  167. 

Peoples  Bank  v.  Calhoun.— 102  United  States  256. 
Rogers  v.  Palmer.— 102  United  States  263. 
United  States  v.  Atherton.— 102  United  States  372. 
United  States  v.  Schurz.— 102  United  States  378. 
Walker  v.  Reister.— 102  United  States  467. 
Goodman  v.  Niblack.— 102  United  States  556. 
Auffm'ordt  v.  Rasin.— 102  United  States  620. 
Trimble  v.  Woodhead.— 102  United  States  647. 
White  v.  National  Bank.— 102  United  States  658. 
Third  Nat'l  Bank  v.  Nat'l  Bank.— 102  United  States 

663. 

Sharpe  v.  Doyle.— 102  United  States  686. 
Dennick  v.  Railroad  Co.— 103  United  States  11. 
United  States  v.  Hough.— 103  United  States  71. 
Jones  v.  Benthuysen. — 103  United  States  87. 
*Kilbourn  v.  Thompson.— 103  United  States  168. 
Wilmot  v.  Mudge.— 103  United  States  217. 
Barbour  v.  Priest.— 103  United  States  293. 
Moyer  v.  Dewey.— 103  United  States  301. 
Coddington  v.  Railroad  Co.— 103  United  States  409. 
Terry  v.  McLure  — 103  United  States  442. 
Jones  v.  Walker.— 103  United  States  444. 
Waterworks     Company     v.     Barrett. — 103     United 

States  516. 
County  of  Ouachita  v.  Wolcott— 103  United  States 

559. 

Adam  v.  Norris.— 103  United  States  591. 
"Williams  v.  Louisiana.— 103  United  States  637. 


CALENDAR   OF   OPINIONS  189 

*Durkee  v.  Board  of  Liquidation. — 103  United  States 
646. 

National  Bank  v.  City  Bank.— 103  United  States  668 

Thachers  Distilled  Spirits.— 103  United  States  679. 

R.  R.  Co.  v.  United  States.— 103  United  States  703. 
*School  District  v.  Ins.  Co.— 103  United  States  707. 

Steamship  Co.  v.  United  States. — 103  United  States 
721. 

National  Bank  v.  Kimball.— 103  United  States  732. 

Grinnell  v.  Railroad  Co.— 103  United  States  739. 

1881— OCTOBER  TERM 

Shanks  v.  Klein.— 104  United  States  18. 

United  States  v.  Jackson. — 104  United  States  41. 
*Kelly  v.  Pittsburg.— 104  United  States  78. 

Porter  v.  Graves.— 104  United  States  171. 

Morrison  v.  Stalnaker.— 104  United  States  213. 

Loring  v.  Frue.— 104  United  States  223. 

Walker  v.  Powers.— 104  United  States  245. 

Bronson  v.  Schulten.— 104  United  States  410. 

Wells  v.  Nickles.— 104  United  States  444. 

Hawes  v.  Oakland.— 104  United  States  450. 

United  States  v.  Steamship  Company. — 104  United 
States  480. 

Huntington  v.  Palmer.— 104  United  States  482. 

Pollard  v.  Vinton.— 105  United  States  7. 
•Greenwood  v.  Freight  Co.— 105  United  States  13. 

United  States  v.  Tyler.— 105  United  States  244. 

Burley  v.  Flint.— 105  United  States  247. 

Scheffer  v.  Railroad  Co.— 105  United  States  249. 

Simmons  v.  Ogle.— 105  United  States  271. 

Supervisors  v.  Stanley. — 105  United  States  305. 


190  SAMUEL  FREEMAN  MILLER 

Hills  v.  Exchange  Bank.— 105  United  States  319. 

Evansville  Bank  v.  Britton. — 105  United  States  322. 

Manchester  v.  Ericsson. — 105  United  States  347. 
*Packet  Co.  v.  Catlettsburg.— 105  United  States  559. 
*New  Orleans  v.  Morris.— 105  United  States  600. 

United  States  v.  Smith.— 105  United  States  620. 

1882— OCTOBER  TERM 

Bayly  v.  University.— 106  United  States  11. 
Equator  Co.  v.  Hall.— 106  United  States  86. 
Mason  v.  N.  W.  Ins.  Co.— 106  United  States  163. 
*United  States  v.  Lee.— 106  United  States  196. 
Woodenware  Co.    v.    United    States. — 106    United 

States  432. 

United  States  v.  Denvir.— 106  United  States  536. 
Merchants  Bank  of  Pittsburg  v .  Slagle. — 106  United 

States  558. 
Jenkins  v.  International  Bank. — 106  United  States 

571. 

Hayden  v.  Manning.— 106  United  States  586. 
Pray  v.  United  States.— 106  United  States  594. 
Gay  v.  Parpart— 106  United  States  679. 
*People  v.  Compagnie  Generale  Transatlantique. — 107 

United  States  59. 

Cotzhausen  v.  Nazro. — 107  United  States  215. 
*Kring  v.  Missouri.— 107  United  States  221. 
Campbell  v.  United  States.— 107  United  States  407. 
Baldwin  v.  Stark.— 107  United  States  463. 
McLaughlin  v.   United   States.— 107   United  States 

526. 

Medsker  v.  Bonebrake— 108  United  States  66. 
Stucky  v.  Masonic  Savings  Bank. — 108  United  States 

74. 


CALENDAR   OF   OPINIONS  191 

Eoundtree  v.  Smith.— 108  United  States  269. 
United  States  v.  Ambrose.— 108  United  States  336. 
Western  Pacific  R.  R.  Co.  v.  United  States.— 108 

United  States  510. 

*Vance  v.  Vance.— 108  United  States  514. 
Washington  &  Georgetown  R.  R.  Co.  v.  Dist.  of  Col. 

—108  United  States  522. 

1883— OCTOBER  TERM 

Louis  v.  Brown  Township.— 109  United  States  162. 
Matthews  v.  Densmore. — 109  United  States  216. 
Walsh  v.  Preston.— 109  United  States  297. 
*Memphis  Gas  Co.  v.  Shelby  County.— 109  United 

States  398. 
*Cunningham  v.  Macon  &  Brunswick  R.  R.  Co. — 109 

United  States  446. 
Thomas  v.  Brownville  etc.  R.  R.  Co.— 109  United 

States  522. 
Cedar  Rapids  etc.  Railroad  v.  Herring. — 110  United 

States  27. 

Taylor  v.  Bemiss.— 110  United  States  42. 
Gilmer  v.  Higley.— 110  United  States  47. 
District  of  Columbia  v.  Clephane. — 110  United 

States  212. 

Whiteside  v.  Haselton.— 110  United  States  296. 
Mitchell  v.  Clark.— 110  United  States  633. 
*Ex  parte  Yarbrough.— 110  United  States  651. 
*Lithographic  Co.  v .  Sarony. — 111  United  States  53. 
Phoenix  Bank  v.  Risley. — 111  United  States  125. 
Chambers  v.  Harrington. — 111  United  States  350. 
Eilers  v.  Boatman  et  ai— 111  United  States  356. 
Corn   Exchange    Bank   v.    Scheppers. — 111    United 

States  440. 


192  SAMUEL  FREEMAN  MILLER 

Quinn  v.  Chapman. — 111  United  States  445. 
Hitz  v.  Nat'l  Met.  Bank.— Ill  United  States  722. 
Badgers  v.  Gutierez.— Ill  United  States  734. 
Factors  Ins.  Co.  v.  Murphy.— Ill  United  States  738. 
*Butehers  Union  Co.  v.  Crescent  City  Co. — 111  Uni- 
ted States  746. 

1884— OCTOBER  TERM 

United  States  v.  Waddell.— 112  United  States  76. 
Great  Western  Insurance  Co.  v.  United  States. — 112 

United  States  193. 
Ogdensburgh  Railroad  v.  N.   &  L.  Railroad. — 112 

United  States  311. 

*Head  Money  Cases.— 112  United  States  580. 
Matthews  v.  Warner.— 112  United  States  600. 
St.  Paul  R.  R.  v.  Winona  R.  R.  Co.— 112  United 

States  720. 

*Hess  v.  Reynolds.— 113  United  States  73. 
Polleys  v.  Black  River  Co.— 113  United  States  81. 
Pullman  Car  Co.  v.  Speck.— 113  United  States  84. 
Bicknell  v.  Comstock.— 113  United  States  149. 
Caillot  v.  Deetken.— 113  United  States  215. 
Cheong  Ah  Moy  v.  United  States.— 113  United  State 

216. 

Price  v.  Penn.  R.  R.  Co.— 113  United  States  218. 
Dakota  County  v.  Glidden.— 113  United  States  222. 
Sully  v.  Drennan.— 113  United  States  287. 
Ex  parte  Bigelow.— 113  United  States  328. 
Peugh  v.  Davis.— 113  United  States  542. 
Gumbel  v.  Pitkin.— 113  United  States  545. 
Kansas  Pacific  Ry.  Co.  v.  Dunmeyer. — 113  United 
States  629. 


CALENDAR   OF   OPINIONS  193 

Ex  parte  Fisk.— 113  United  States  713. 
Litchfield  v.  Ballou.— 114  United  States  190. 
United  States  v.  Minor.— 114  United  States  233. 
Aurrecoechea  v.  Bangs. — 114  United  States  381. 
*Amy  v.  Shelby  County  Taxing  District. — 114  United 

States  387. 

Dis.  of  Col.  v.  B.  &  P.  R.  R.— 114  United  States  453. 
Ailing  v.  United  States.— 114  United  States  562. 
Wales  v.  Whitney.— 114  United  States  564. 
Rich.  Mining  Co.  v.  Rose.— 114  United  States  576. 
Wheeler  v.  N.  B.  R.  R.  Co.— 115  United  States  29. 

1885 — OCTOBER  TERM 

Van  Weel  v.  Winston.— 115  United  States  228. 
Thompson  v.  Allen  County. — 115  United  States  550. 
*Northern  Pacific  R.  R.  Co.  v.  Traill  County.— 115 

United  States  600. 

*Campbell  v.  Holt.— 115  United  States  620. 
Holgate  v.  Eaton.— 116  United  States  33. 
*Fisk  v.  Jefferson  Police  Jury. — 116  United  States 

131. 
Stewart  v.  Jefferson  Police  Jury. — 116  United  States 

135. 
*Healy  v.  Joliet  &  Chicago  Railroad  Co.— 116  United 

States  191. 

Webb  v.  Barnwall.— 116  United  States  193. 
Milwaukee  v.  Koeffler.— 116  United  States  219. 
Iron  Silver  Mining  Co.  v.  Cheesman. — 116  United 

States  529. 

Liebke  v.  Thomas.— 116  United  States  605. 
Reynolds   v.   Iron   Silver  Mining  Co. — 116   United 
States  687. 

13 


194  SAMUEL  FREEMAN  MILLER 

Waterville  v.  Van  Slyke.— 116  United  States  699. 
Sioux  City  Railroad  v.  Chicago  Railway. — 117  Unit- 
ed States  406. 
Dimock  v.  Revere   Copper  Company. — 117   United 

States  559. 

Alabama  v .  Montague. — 117  United  States  602. 
Libby  v.  Clark.— 118  United  States  250. 
*Salt  Lake  City  v.  Hollister.— 118  United  States  256. 
*Penn  Co.  v.  St.  Louis  &  Alton  Railroad.— 118  United 

States  290. 

*United  States  v.  Kagama.— 118  United  States  375. 
*Morgan  v.  Louisiana. — 118  United  States  455. 

1886— OCTOBER  TERM 

*Wabash  Railway  Co.  v.  Illinois.— 118  United  States 

557. 
Penn.  R.  R.  v.  St.  Louis  R.  R.— 118  United  States 

630. 
Kansas  City  R.  R.  Co.  v.  Attorney  General. — 118 

United  States  682. 
*Willamette  Manufacturing  Co.  v.  Bank  of  British 

Col.— 119  United  States  191. 

*United  States  v.  Rauscher.— 119  United  States  407. 
*Ker  v.  Illinois.— 119  United  States  436. 
Campbell  v.  Laclede  Gas  Co.— 119  United  States  445. 
Wolverton  v.  Nichols.— 119  United  States  485. 
Gilbert  v.  Moline  Plough  Co.— 119  United  States 

491. 

Ivinson  v.  Hutton.— 119  United  States  604. 
Iron  Mountain  &  Helena  R.  R.  v .  Johnson. — 119 

United  States  608. 
Huntington  v.  Saunders. — 120  United  States  78. 


CALENDAR   OF   OPINIONS  195 

United  States  v.  Saunders.— 120  United  States  126. 
Quincy  v.  Steel.— 120  United  States  241. 
United  States  v.  Dunn.— 120  United  States  249. 
Rolling  Mill  v.  St.  Louis  etc.  Railroad.— 120  United 

States  256. 

Schuler  v.  Israel.— 120  United  States  506. 
Laclede  Bank  v.  Schuler.— 120  United  States  511. 
*Ex  parte  Bain.— 121  United  States  1. 
*Fargo  v.  Michigan.— 121  United  States  230. 
•Maxwell  Land  Grant  Case.— 121  United  States  325. 
Boynton  v.  Ball.— 121  United  States  457. 
Carpenter  v.  Wash.  R.  R.  Co.— 121  United  States 

474. 

Bullard  v.  Des  Moines  R.  R.— 122  United  States  167. 
Sanger  v.  Nightingale.— 122  United  States  176. 
Maxwell  Land  Grant  Case.— 122  United  States  365. 
Travellers  Insurance  Co.  v.  Edwards. — 122  United 

States  457. 
Clinton   v.   Missouri  Pacific   Railway. — 122   United 

States  469. 
N.  W.  Insurance  Co.  v.  Muskegon  Bank. — 122  United 

States  501. 
McLeod  v.  Bank  of  St.  Louis. — 122  United  States 

528. 

1887 — OCTOBER  TERM 

*Davenport  Bank  v.  Davenport. — 123  United  States 

83. 

Harshman  v.  Winterbottom.— 123  United  States  215. 
Hoard  v.  Chesapeake  &  Ohio  Railway. — 123  United 

States  222. 
Lacombe  v.  Forstall's  Sons.— 123  United  States  562. 


196  SAMUEL  FREEMAN  MILLER 

Teal  v.  Bibly.— 123  United  States  572. 
Beeson  v.  Johns. — 124  United  States  56. 
*Langdon  v.  Sherwood. — 124  United  States  74. 
McLean  v.  Vilas.— 124  United  States  86. 
Lawson  v.  Floyd.— 124  United  States  108. 
United  States  v.  Bond.— 124  United  States  301. 
United  States  v.  Mouat.— 124  United  States  303. 
United  States  v.  Hendee.— 124  United  States  309. 
Chapin  v.  Streeter. — 124  United  States  360. 
Aetna    Life    Insurance    Co.     v.    Middleport. — 124 
United  States  534. 

Thornton  v.  Schrerber.— 124  United  States  612. 
*United  States  v.  San  Jacinto  Tin  Co.— 125  United 

States  273. 

*W.  U.  Tel.  Co.  v.  Mass.— 125  United  States  530. 
*Bucher  v.  Cheshire  R.  R.  Co.— 125  United  States  555 

Bowerman  v.  Rogers. — 125  United  States  585. 
*Doolan  v.  Carr.— 125  United  States  618. 

Tennessee  etc.  Railroad  Co.  v.  Southern  Tel.  Co. — 
125  United  States  695. 

Petition   for   Rehearing   in    Telephone    Cases. — 126 
United  States  577. 

Lawrence  v.  Merritt. — 127  United  States  113. 

Gleason  v.  District  of  Col.— 127  United  States  133. 
*Whitbeck  v.  Bank.— 127  United  States  193. 

United  States  v.  Broadhead.— 127  United  States  212. 

Jones  v.  Craig.— 127  United  States  213. 
*Cameron  v.  Hodges.— 127  United  States  322. 
*Culbertson  v.  Whitbeck  Co.— 127  United  States  326. 
*Ratterman  v.  Western  Union   Telegraph   Co. — 127 

United  States  411. 
*Benson  v.  McMahon.— 127  United  States  457. 


CALENDAR   OF   OPINIONS  197 

Hegler  v.  Faulkner.— 127  United  States  482. 

Taylor  v.  Holmes.— 127  United  States  489. 
*In  re  Coy.— 127  United  States  731. 

Craig  v.  Leitensdorfer.— 127  United  States  764. 
*In  re  Burdett— 127  United  States  771. 

Seagrist  v .  Crabtree.— 127  United  States  773. 

Hunt  v.  Blackburn.— 127  United  States  774. 

Marchand  v.  Livandais. — 127  United  States  775. 

Western  Construction  Co.  v.  McGillis. — 127  United 
./••  States  776. 

1888— OCTOBER  TERM 

United  States  v.  Knox.— 128  United  States  230. 
Means  v.  Dowd. — 128  United  States  273. 
*United  States  v.  Bell  Telephone   Co.— 128  United 

States  315. 
Jones  v.  East  Tennessee  Railroad  Co. — 128  United 

States  443. 

*Denny  v.  Bennett.— 128  United  States  489. 
*Glasgow  v.  Baker.— 128  United  States  560. 
Ware  v.  Allen.— 128  United  States  590. 
Probst  v.  Presbyterian  Church.— 129  United  States 

182. 
Farmers  Loan  and  Trust  Co. — 129  United  States 

206. 

Brown  v.  Sutton.— 129  United  States  238. 
*Walworth  v.  Harris.— 129  United  States  355. 
United  States  v.  Marshall  Mining  Co. — 129  United 

States  579. 

*Shotwell  v.  Moore.— 129  United  States  590. 
*0regon  Railway   Co.   v.   Oregonian  Railway  Co. — 
130  United  States  1. 


198  SAMUEL  FREEMAN  MILLER 

*Botiller  v.  Dominguez. — 130  United  States  238. 

United  States  v.  Pile.— 130  United  States  280. 
*Gon-shay-ee  Petitioner. — 130  United  States  343. 
*Captain  Jack,  Petitioner.— 130  United  States  353. 
*Huling  v.  Kaw  Valley  Railway.— 130  United  States 
559. 

Terry  v.  Sharon. — 131  United  States  40. 

United  States  v.  Hall.— 131  United  States  50. 

United  States  v.  Perrin. — 131  United  States  55. 

United  States  v.  Reilly.— 131  United  States  58. 
*Freeland  v.  Williams.— 131  United  States  405. 

1889— OCTOBER  TERM 

Hill  v.  Sumner.— 132  United  States  118. 

Redfield  v.  Parks.— 132  United  States  239. 

Klein  v.  Hoffheimer.— 132  United  States  367. 

Bradley  v.  Claflin.— 132  United  States  379. 

Ayers  v.  Watson.— 132  United  States  394. 
*Western   Union    Telegraph    Co.    v.    Alabama. — 132 
United  States  472. 

Rio    Grande    Railroad    Co.    v.    Vinet.— 132    United 
States  565. 

Patrick  v.  Graham.— 132  United  States  627. 
*Clayton  v.  Utah  Territory.— 132  United  States  632. 

Jack  v.  Utah  Territory.— 132  United  States  643. 

Case  v.  Kelly.— 133  United  States  21. 

Mason  v.  Pewabic  Mining  Co. — 133  United  States  50 
*Smith  v.  Lyon.— 133  United  States  315. 

Buford  v.  Houtz.— 133  United  States  320. 

Culver  v.  Uthe.— 133  United  States  655. 
*Eilenbecker  v.  Plymouth  Co.— 134  United  States  31. 
*Wight,  Petitioner.— 134  United  States  136. 


CALENDAE  OF  OPINIONS  199 

*Medley,  Petitioner.— 134  United  States  160. 
Savage,  Petitioner.— 134  United  States  176. 
Chicago  etc.  Railway  Co.  v.  Minnesota. — 134  United 

States  418,  459. 

*In  re  Neagle.— 135  United  States  1. 
Iron  Silver  Mining  Co.  v.  Campbell. — 135  United 

States  286. 

*In  Re  Lane.— 135  United  States  443. 
Des  Moines  Railroad  Co.  v .  Wabash  Railway  Co. — 

135  United  States  576. 
Norris  v.  Haggin.— 136  United  States  386. 
Texas   etc.   Railway  Co.   v.  Marshall.— 136   United 

States  393. 
*In  Re  Burrus.— 136  United  States  586. 


PART  II 
DISSENTING  OPINIONS  OF  JUSTICE  MILLER 

1862 — DECEMBER  TERM 

Calais  Steamboat  Co.  v.  Scudder  Administrator  of 
Van  Pelt.— 2  Black  372,  393. 

1863 — DECEMBER  TERM 

Gelpcke  v.  City  of  Dubuque.— 1  Wallace  175,  207. 
Meyer  v.  City  of  Muscatine.— 1  Wallace  384,  393. 
United  States  v.  Halleck.— 1  Wallace  439,  456 
Spain  v.  Hamilton's  Administrator. — 1  Wallace  604, 

627. 

Parker  v.  Phetteplace.— 1  Wallace  684,  690. 
United  States  v.  Estudillo.— 1  Wallace  710,  717. 


200  SAMUEL  FREEMAN  MILLER 

1864 — DECEMBER  TERM 

Steamship  Co.  v.  Joliffe.— 2  Wallace  450,  463. 
1865 — DECEMBER  TERM 

Rogers  v.  Burlington.— 3  Wallace  654,  668,  672. 
United  States  v.   Circuit  Judges.— 3  Wallace  673, 
677. 

1866 — DECEMBER  TERM 

Ex  parte  Milligan.— 4  Wallace  2,  142. 

Cummings  v .  the  State  of  Missouri. — 4  Wallace  277, 

332. 

»Ex  parte  Garland.— 4  Wallace  333,  382. 
Croxall  v.  Shererd.— 5  Wallace  268,  290. 
Insurance  Company  v.  Chase. — 5  Wallace  509,  517. 
Packet  Company  v.  Sickles.— 5  Wallace  580,  596. 

1867 — DECEMBER  TERM 

Riggs  v.  Johnson  County.— 6  Wallace  166,  200. 
United  States  v.  Hartwell.— 6  Wallace  358,  397. 
Canal  Company  v.  Gordon. — 6  Wallace  561,  572. 
Society  for  Savings  v.  Coite. — 6  Wallace  594,  611. 
Provident  Institution  v.  Massachusetts. — 6  Wallace 

611,  632. 
Hamilton    Company   v.    Massachusetts. — 6   Wallace 

632,  641. 

Gaines  v.  New  Orleans.— 6  Wallace  642,  718. 
Gaines  v.  De  La  Croix.— 6  Wallace  719,  723. 
Minnesota  Co.  v.  St.  Paul  Co.— 6  Wallace  742,  747. 
James  v.  the  Railroad  Company. — 6  Wallace  752, 

756. 
Armstrong's  Foundry.— 6  Wallace  766,  769. 


CALENDAR   OF   OPINIONS  201 

1868 — DECEMBER  TERM 

Aurora  City  v.  West.— 7  Wallace  82,  105. 

Bronson  v.  Rhodes.— 7  Wallace  229,  255. 

Butler  v.  Horwitz.— 7  Wallace  258,  262. 

Ex  parte  Bradley.— 7  Wallace  364,  379. 

Texas  v.  White.— 7  Wallace  700,  741. 

Roland  v.  United  States.— 7  Wallace  743,  751. 

Blanchard  v.  Putnam.— 8  Wallace  420,  429. 

Home  of  the  Friendless  v.  Rouse. — 8  Wallace  430, 
439. 

The  Washington  University  v.  Rouse. — 8  Wallace 

439,  441. 

*Butz  v.  City  of  Museatine .— 8  Wallace  575,  585. 
*Hepburn  v.  Griswold.— 8  Wallace  603,  626. 

1869 — DECEMBER  TERM 

The  Secretary  v.  McGarrahan.— 9  Wallace  298,  314. 
The  City  v.  Lamson.— 9  Wallace  477,  486. 
Little  v.  Herndon.— 10  Wallace  26,  32. 

1871 — DECEMBER  TERM 

*Trebilcock  v.  Wilson.— 12  Wallace  687,  699. 
United  States  v.  Klein.— 13  Wallace  128,  148. 
Pendleton  County  v.  Amy.— 13  Wallace  297,  306. 
French  v.  Edwards.— 13  Wallace  506,  516. 
Railroad   Company  v.   Soutter  et   al. — 13   Wallace 

517,   526. 

United  States  v.  Crusell.— 14  Wallace  1,  5. 
Hendersons'  Distilled  Spirits.— 14  Wallace  44,  64. 
Gorham  Company  v.  White.— 14  Wallace  511,  531. 


202          SAMUEL  FREEMAN  MILLER 

1872 — DECEMBER  TERM 

*State  Tax  on  Railway  Gross  Receipts. — 15  Wallace 

284,  297. 
State  Tax  on  Foreign  Held  Bonds.— 15  Wallace  300, 

326. 

United  States  v.  Thomas.— 15  Wallace  337,  352. 
Lynde  v.  The  County.— 16  Wallace  6,  15. 
Taylor  v.  Taintor.— 16  Wallace  366,  375. 
Kenicott  v.  The  Supervisors. — 16  Wallace  452,  471. 
Railroad  Co.  v.  County  of  Otoe. — 16  Wallace  667. 

678. 

Olcott  v.  The  Supervisors.— 16  Wallace  678,  698. 
Lapeyre  v.  United  States.— 17  Wallace  191,  201. 
United  States  v.  Railroad  Company. — 17  Wallace 

322,  333. 

1873— OCTOBER  TERM 

United  States  v.  Lapene. — 17  Wallace  601,  604. 

Sykes  v.  Chadwick.— 18  Wallace  141,  149. 

Atkins  v.  Disintegrating  Co. — 18  Wallace  272,  307. 

Cook  v.  Tullis.— 18  Wallace  332,  342. 

Case  of  the  Sewing  Machine  Companies. — 18  Wal- 
lace 553,  587. 

Barings  v.  Dabney. — 19  Wallace  1,  12. 

Nugent  v.  the  Supervisors. — 19  Wallace  241,  253. 

Coit  v.  Robinson.— 19  Wallace  274,  286. 

Ex  parte  Robinson.— 19  Wallace  505.  513. 

Township  of  Pine  Grove  v.  Talcott. — 19  Wallace 
666,  679. 

Pacific  Railroad  Co.  v.  Maguire.— 20  Wallace  36,  45. 
*Tioga  R.  R.  v.  Blossburg  &  Corning  R.  R.— 20  Wal- 
lace 137,  151. 


CALENDAR   OF   OPINIONS  203 

1874 — OCTOBER  TERM 

Clark  v.   Iselin.— 21  Wallace   360,   378. 
Watson  v.  Taylor.— 21  Wallace  378,  381. 
Railroad  Co.  v.  Maryland.— 21  Wallace  456,  475. 
Jeffries  v.  Life   Insurance   Company. — 22   Wallace 

47,  57. 

*Woodson  v.  Murdock.— 22  Wallace  351,  374. 
The  Corn  Planter  Patent.— 23  Wallace  181,  235. 

1875 — OCTOBER  TERM 

Upton,   Assignee   v.   Tribilcock. — 91   United   States 

45,  55. 
Hoover  Assignee  v.  Wise  et  al. — 91  United  States 

308,  315. 
Town  of  Colma  v.  Eaves.— 92  United  States  484, 

494. 
Town  of  Venice  v.  Murdock. — 92  United  States  494, 

502. 
Town  of  Genoa  v.  Woodruff — 92  United  States  502, 

503. 
County  of  Moultrie  v.  Savings  Bank. — 92  United 

States  631,  637. 
Marcy  v.  Township  of  Oswego. — 92  United  States 

637,  642. 
*Humboldt    Township    v.    Long    et    al. — 92    United 

States  642,  646. 

1876— OCTOBER  TERM 

Shaw  v.  United  States.— 93  United  States  235,  241. 
Windsor  v.  McVeigh.— 93  United  States  274,  284. 
Sage  et  al.  v.  Central  R.  R.  Co.  et  al.— 93  United 
States  412,  420. 


I 
204          SAMUEL  FREEMAN  MILLER 

Lake  Superior  &  Miss.  R.  R.  Co.  v .  United  States. — 

93  United  States  442,  456. 
Smith  v.  Goodyear  Dental  Vulcanite  Co. — 93  United 

States  486,  501. 
County  of  Callaway  v.  Foster. — 93  United  States 

567,  574. 

Fuller  v.  Yentzer.— 94  United  States  288,  299. 
Fuller  v.  Yentzer.— 94  United  States  299,  307. 
Doyle  v.   Continental    Insurance     Co. — 94    United 

States  535,  543. 
County  of  Scotland  v .  Thomas. — 94  United  States 

682,  695. 

1877 — OCTOBER  TERM 

Insurance  Co.  v.  Boone.— 95  United  States  117,  133, 

143. 
County  of  Cass  v.  Johnson. — 95  United  States  360, 

370. 
County  of  Cass  v .  Jordan. — 95  United  States  373, 

375. 

Clark  v.  United  States.— 95  United  States  539,  544. 
United  States  v.  County  of  Clark.— 96  United  States 

211,  218. 

Hitchcock  v.  Galveston.— 96  United  States  341,  353. 
United   States   v.   Van   Auken. — 96   United   States 

366,  369. 

Murray  v.  Charleston.— 96  United  States  432,  449. 
Jenkins  v.  Charleston.— 96  United  States  449. 
Ketchum  v.  Duncan.— 96  United  States  659,  674. 
County  of  Warren  v.  Marcy. — 97  United  States  96, 

110. 
County  of  Warren  v.  Post.— 97  United  States  110. 


CALENDAR   OF   OPINIONS  205 

1878— OCTOBER  TERM 

Fertilizing   Co.   v.   Hyde   Park— 97   United   States 

659,  670. 
Bradley  v.  United  States.— 98  United  States   104, 

117. 
County  of  Schuyler  v.  Thomas. — 98  United  States 

169,  176. 

Andreae  v.  Redfield.— 98  United  States  225,  239. 
National  Bank  v.  Mathews.—  98  United  States  621, 

629. 
Platt  v.  Union  Pacific  R.  R.  Co.— 99  United  States 

48,  66. 
Supervisors   v.    Galbraith. — 99   United   States   214, 

220. 

Phelps  v.  McDonald.— 99  United  States  298,  308. 
Bank  v.  Partee.— 99  United  States  325,  333. 
Sage  v.  Central  Railroad  Co.— 99  United  States  334, 

348. 

1879— OCTOBER  TERM 

Railroad  Co.  v.  Fraloff.— 100  United  States  24,  32. 
Dow  v.  Johnson.— 100  United  States  158,  170,  191. 
Mount   Pleasant   v.   Beckwith  — 100   United   States 
514,  535. 

1880— OCTOBER  TERM 

Railroad  Co.  v.  National  Bank.— 102  United  States 

14,  32. 
Railroad  Co.  v.  Mississippi. — 102  United  States  135, 

142. 

Hartman  v.  Greenhow. — 102  United  States  672,  686. 
National  Bank  v.  Whitney.— 103  United  States  99, 

103. 


206          SAMUEL  FREEMAN  MILLER 

Barney  v.  Latham.— 103  United  States  205,  216. 
County  of  Morgan  v.  Allen. — 103  United  States  498, 
515. 

1881— OCTOBER  TERM 

Barton  v.  Barbour.— 104  United  States  126,  137. 
Egbert  v.  Lippmann.— 104  United  States  333,  338. 
James  v.  Campbell.— 104  United  States  356,  384. 
Smelting  Co.  v.  Kemp.— 104  United  States  636,  657. 
United  States  v.  Granite  Co.— 105  United  States  37, 

41. 
*Bridge  Co.  v.  United  States.— 105  United  States  470 

484. 
Trustees  v.  Greenough.— 105  United  States  527,  538. 

1882— OCTOBER  TERM 

Grant  v.  Phoenix  Insurance  Co. — 106  United  States 

429,  432. 

Savannah  v.  Jesup.— 106  United  States  563,  570. 
Kountze  v.   Omaha  Hotel  Co.— 107   United  States 

378,  396. 
Sun  Mutual  Insurance  Co.  v .  Ocean  Insurance  Co. 

—107  United  States  485,  511. 
Boese  v.  King.— 108  United  States  379,  387. 

1883— OCTOBER  TERM 

Potomac  Steamboat  Co.  v.  Upper  Pot.  S.  Co. — 109 
United  States  672,  698. 

Five  Per  Cent  Cases— 110  United  States  471,  485. 

Anderson  v.  Philadelphia  Warehouse  Co. — 111  Unit- 
ed States  479,  485. 


CALENDAR   OF   OPINIONS  207 

1884— OCTOBER  TERM 

Mahn  v.  Harwood.— 112  United  States  354,  364. 
Findlay  v.  McAllister.— 113  United  States  104,  116. 
Clawson  v.  United  States.— 113  United  States  143, 
149. 

1885— OCTOBER  TERM 

Cannon  v.  United  States.— 116  United  States  55,  79. 
Boyd  v.  United  States.— 116  United  States  616,  638. 
Vicksburg  Railroad  Co.  v.  Dennis. — 116  United 

States  665,  670. 

Express  Cases.— 117  United  States  1,  29. 
Graffam  v.  Burgess.— 117  United  States  180,  196. 
The  City  of  Norwich.— 118  United  States  468,  506. 
The  Scotland.— 118  United  States  507,  520. 
The  Great  Western.— 118  United  States  520,  526. 

1886— OCTOBER  TERM 

Vicksburg  &  Meridian   Railroad   v.  O'Brien. — 119 

United  States  99,  107. 

Tuttle  v.  Milwaukee  Railway.— 122  United  States 

189,  197. 

1888— OCTOBER  TERM 

Stoutenburgh  v.  Hennick.— 129  United  States  141, 

149. 
Woodstock  Iron  Co.  v.  Extension  Co. — 129  United 

States  643,  663. 
Badeau  v.  United  States.— 130  United  States  439, 

452. 
United  States  v.  Gumming.— 130  United  States  452, 

455. 


208          SAMUEL  FEEEMAN  MILLER 

United  States  v.  Jones.— 131  United  States  1,  20. 
United  States  v.  Drew.— 131  United  States  21. 

1889— OCTOBER  TEEM 

*Fritts  v.  Palmer.— 132  United  States  282,  293. 
Cleveland  v.  Richardson.— 132  United  States  318, 

333. 

Rickmond  v.  Blake.— 132  United  States  592,  599. 
*Cole  v.  Cunningham.— 133  United  States  107,  134. 
Keyser  v.  Hitz.— 133  United  States  138,  152. 
Shepherd  v.  Pepper.— 133  United  States  626,  654. 
Home   Insurance   Co.    v.   New  York. — 134   United 

States  594,  607. 
United    States    v.    North    Carolina.— 136    United 

States  211,  222. 
Chicago    Railway    Co.    v.    Merchants'    Bank. — 136 

United  States  268,  286. 


INDEX 


14 


INDEX 


[Appendices  A,  B,  and  C  are  included  in  the  index] 


Abbott,  Josiah  G.,  member  of  Elec- 
toral Commission,  77 

Achaian  League,    114 

American  Law  Review,  appeal  in, 
for  subscription  for  benefit  of 
Mrs.  Justice  Miller,  63 

Annapolis  Convention,  meeting  of, 
48,  90 

Appendix  A,  83 

Appendix  B,  121 

Appendix  0,  141 

Appendix  D,  173 

Armies,  burden  of  standing,  116 

Armstrong,  Fort,  treaty  negotiated 
at,  78 

Articles  of  Confederation,  govern- 
ment of  the  States  under,  87; 
weakness  of,  88,  89;  Convention 
to  revise,  91;  value  of,  108 

Authorities,  address  of  Justice  Mil- 
ler on  use  and  value  of,  in  argu- 
ment and  decision  of  cases,  35, 
123 ;  manner  of  citation  of,  39, 
40;  lack  of  texts  upon,  123;  in- 
fluence of,  in  courts,  125;  stand- 
ing of  judge  in  opinions  cited  as, 
127;  value  of  opinions  of  learned 
men  as,  127;  reference  to  pre- 
vious opinions  as,  131;  citation 
of,  135 

Authorities,  The  Use  and  Value 
of,  in  the  Argument  of  Cases 
before  the  Courts,  and  in  the 
Decision  of  Cases  by  the  Courts, 
by  Samuel  Freeman  Miller,  123 

Babylon,  ancient  civilization  of, 
148,  152 

Ballinger,  Miss,  marriage  of  Sam- 
uel F.  Miller  to,  62 

Bancroft,    George,    quotations   from, 

117 

Barboursville      (Kentucky),     Miller 
practices   medicine   at,    3;    debat- 
ing society  at,  4 
Bartlett,    Rev.    Dr.,    address   of,    at 

funeral  of  Justice  Miller,   58 
Barton,   Clara,   158 
Bayard,     Thomas     P.,     member    of 

Electoral  Commission,  77 
Belknap,   William,   impeachment  of, 

46 
Bill  of  Eights,  lack  of,  in  the  Con- 


stitution,    97;     incorporated     in 
amendments,   98 

Black   Hawk,    deposed   by   the   gov- 
ernment, 43 
Black  Hawk  War,  43 
Blackstone,     Sir    William,    commen- 
taries of,   50 

Blackstone's  Commentaries,  authori- 
ty of,   36,   125 
Blair,    John,    public   office   held   by, 

86 

Boone,   Daniel,   settlement  by,   3 
Boonesborough    (Kentucky),    found- 
ed by  Daniel  Boone,    70 
Bradley,  Joseph  P.,  dissenting  opin- 
ion  of,    28 ;   member  of   Electoral 
Commisison,    32;    commended    by 
President   Grant,    56 
Brewer,   David  J.,   accompanies  re- 
mains of  Justice  Miller,  58 
Brief,  citation  of  authorities  in,  137, 

138 

Brinsmead  y.   Harrison,  opinion  of 
Justice  Miller  quoted  in  case  of, 
31 
Burrus,   In  Re,   opinion   of  Justice 

Miller  in,  17 
Calais  Steamboat  Company  v.    Van 

Pelt's  administrator,   16 
Calendar    of    the    Opinions    of    Jus- 
tice Samuel  F.  Miller,  A,  175 
California,    political   organization   of 

emigrants   to,    118 
Campbell,    John   A.,    resignation   of, 

from   Supreme   Bench,    9 
Carlisle,     John    G.,    considered    for 
Chief  Justiceship  of  the  Supreme 
Court,    57 

Carlyle,   Thomas,   a  phrase  of,   quo- 
ted,   29 
Carondelet,   Governor,  grant  to  Du- 

buque  confirmed  by,   43 
Centennial    of    the    Constitution    of 

the  United  States,  48 
Chase,   Salmon  P.,   appointment  of, 
to  Supreme  Court,   14;  statement 
of,  concerning  Justice  Miller,  55 ; 
death  of,  55 
Choate,  Joseph  H.,  quotation  from, 

19 
Civil  War,  results  of,  1,  116 


212 


INDEX 


Clay,  Cassius  M.,  Justice  Miller  a 
follower  of,  4 

Clay,  Henry,  home  of,  2 

Cleveland,  Grover,  appointment  of 
Chief  Justice  by,  56 

Clifford,  Nathan,  dissenting  opinion 
of,  28;  member  of  Electoral  Com- 
mission, 77 

Code  Napoleon,  questions  involving 
the,  39,  134 

Columbia  College,  John  F.  Dillon  a 
professor  in,  47 

Commerce,  part  played  by,  in  for- 
mation of  Constitution,  89;  State 
regulation  of,  attempted,  93 ;  in- 
fluence of,  in  case  of  German 
States,  94 

Communism,  theory  of,   157 

Congress,  bicameral  organization  of, 
100 

Consolidation  of  the  Union,  96,  109 

Constitution  of  the  United  States, 
amendments  of,  after  the  Rebel- 
lion, 1 ;  great  interpreters  of,  2 ; 
construction  of,  by  Justice  Miller, 
17;  Centennial  of,  48,  85;  spirit 
of  the  founders  of,  48 ;  lectures 
on  the,  by  Justice  Miller,  49;  ad- 
dress on  the  formation  of,  85 ; 
signers  of,  86 ;  causes  leading  to 
formation  of,  87;  ratification  of, 
92,  95 ;  objection  of  Rhode  Island 
to,  92,  93 ;  letter  transmitting,  to 
Congress,  95;  objections  to,  97; 
three  great  amendments  to,  110; 
scope  of  jurisdiction  of,  112;  pur- 
pose and  efficacy  of,  113 ;  influ- 
ence of,  upon  European  nations, 
117;  comments  upon,  117,  118 

Constitution,  The  Formation  of  the, 
by  Samuel  Freeman  Miller,  85 

Constitution  of  the  United  States, 
Miller  on  the,  50 

Corkhill,  George  B.,  marries  daugh- 
ter of  Justice  Miller,  62 

Cumberland  Gap,   3 

Daniel,  Peter  V.,  death  of,  9 

Dartmouth  College  Case,  Justice 
Miller  discusses,  34 

Davis,  C.  K.,  comment  of,  concern- 
ing Justice  Miller,  60 

Davis,  David,  appointment  of,  to 
Supreme  Court,  14,  15 

Davis,  Henry  E.,  statement  pre- 
served by,  54 

Day,  William  R.,  appointment  of,  to 
Supreme  Court,  14 

Declaration  of  Independence,  Cen- 
tennial Celebration  of,  85 

Delaware,  represented  in  Annapolis 
Convention,  90 


Deputies,  French  House  of,   103 

Dillon,  John  F.,  comment  of  Jus- 
tice Miller  on,  47 

Dodge,  Augustus  C.,  James  Harlan 
succeeds,  as  United  States  Sena- 
tor, 74 

Dolliver,  J.  P.,  Massachusetts  Ave- 
nue home  of  Justice  Miller  now 
owned  by,  81 

Dubuque,    Julien,    settlement  by,   43 

Dubuque    (Iowa),   settlement  of,   43 

Eden,    Garden   of,    156 

Edmunds,  George  F.,  member  of 
Electoral  Commission,  77 

Egypt,  early  civilization  of,  148,  152 

Electoral  College,  objection  against, 
105 

Electoral  Commission,  composition 
of,  32 

Embry,   James  H.,  remarks  of,   2 

England,  Court  of  Common  Pleas 
of,  31;  judges  and  courts  of,  37, 
128 

Executive  office,  formation  of,  in  the 
Constitution,  102,  104;  form  of, 
in  France,  103 

Europe,  reformation  in,  149 ;  over- 
throw of  political  conditions  in, 
151 

Federal  judges,  protection  of,   24 

Field,  Stephen  J,,  appointment  of, 
to  Supreme  Court,  14;  assault  on, 
25;  member  of  Electoral  Commis- 
sion, 77 

Flagg,  Charles  N.,  portrait  of  Jus- 
tice Miller  painted  by,  73 

Florida,  electoral  votes  of,  in  Til- 
den-Hayes  controversy,  31 

Formation  of  the  Constitution,  The, 
by  Samuel  F.  Miller,  85 

Fort  Armstrong,  treaty  negotiated 
at,  78 

Fox  Indians,   42,   43 

France,   government  of,    102,    103 

Franklin,  Benjamin,  member  of 
Constitutional  Convention,  87; 
suggests  Washington  for  Presi- 
dent of  Constitutional  Conven- 
tion, 92 

Frelinghuysen,  Frederick  T.,  mem- 
ber of  Electoral  Commission,  77 

French   Revolution,    150,    151,    152 

Fuller,  Melville,  quotations  from, 
1,  17,  19,  64;  accompanies  re- 
mains of  Justice  Miller,  58 

Garfield,  James  A.,  member  of 
Electoral  Commission,  77. 

Garland,  A.  HM  quotation  from, 
concerning  Justice  Miller,  60 

Gate  City,  The  Weekly  (Keokuk), 
quotation  from,  14 


INDEX 


213 


George,    Henry,    theories   of,    155 

Germany,    centralization   of,    94,  114 

Gladstone,  William  Ewart,  quota- 
tion from,  concerning  the  Con- 
stitution of  the  United  States, 
117 

Government,  progress  in  the  science 
of,  147 

Grant,  Ulysses  S.,  military  leader 
of  Rebellion,  1 ;  appointment  of 
Chief  Justice  by,  55;  elected 
President  of  the  United  States, 
106 

Gray,  Horace,  eminence  of,  18; 
opinion  of,  concerning  Justice 
Miller,  19 

Greece,  ancient  civilization  of,  148, 
149 

Greenleaf   on   Evidence,    36,    125 

Gregory,  Charles  Noble,  author's 
preface  by,  xi 

Grimes,  James  W.,  public  service 
of,  vii;  aids  in  securing  ap- 
pointment of  Justice  Miller,  12, 
13 

Grimes,  Mrs.  James  W.,  letter  of 
Justice  Miller  to,  12 

Hamilton,  Alexander,  member  of 
Constitutional  Convention,  87 

Hardwicke,  Earl  of,  value  of  opin- 
ions of,  37,  127,  129 

Harlan,  James,  public  service  of, 
vii;  interviews  President  Lincoln, 
11;  aids  in  securing  appoint- 
ment of  Justice  Miller,  12,  13 

Harper's  Magazine,  article  by  Jus- 
tice Miller  in,  41 

Harper's  Weekly,  quotation  from, 
61 

Harrison,  Brinsmead  v.,    31 

Harrison,  William  Henry,  elected 
President  of  the  United  States, 
106 

Hayes,  Rutherford  B.,  presidential 
election  of,  31,  32;  George  W. 
McCrary,  Secretary  of  War  un- 
der, 47 

Henderson,  David  B.,  Speaker  of 
the  House  of  Representatives,  14 

Hepburn  v.  Griswold,  opinion  in 
case  of,  25 

Hoar,  George  F.,  member  of  Elec- 
toral Commission,  77 

Holland,  results  of  confederation 
to,  114 

Holmes,  Oliver  W.,  appointment  of, 
to  Supreme  Court,  14 

Howard,   Mr.,    158 

Hunton,  Eppa,  member  of  Elec- 
toral Commission,  77 


Immigration,  influence  of,  on  so- 
cialism, 167 

Impeachment,  a  failure  as  an  ef- 
ficient remedy,  112 

Index,    209 

Iowa,  men  of  eminence  from,  vii; 
origin  of  name  of,  41;  resources 
of,  44;  education  in,  44,  45, 
46;  public  men  of,  46;  prosperity 
of,  169 

Iowa,  State  University  of,  address 
of  Justice  Miller  before,  34,  143 ; 
comment  of  Justice  Miller  on,  45 

Iowa,  The  State  of,  article  on,  by 
Justice  Miller,  41 

Iowa  City  (Iowa),  State  University 
at,  45 

Irvine,  Frank,  information  given  by, 
xi 

Irving,  Washington,  quotation  from, 
42 

Jackson,  Andrew,  elected  President 
of  the  United  States,  106 

Johnson  v.  Towsley,  case  of,  30 

Johnson's  Chancery  Reports,   128 

Judiciary  Act  of  1789,  construction 
of,  26 

Juridical  Review,  article  on  Justice 
Miller  in,  26 

Jury  system,  Justice  Miller  attacks 
the,  33 

Kasson,  John  A.,  letter  of,  concern- 
ing appointment  of  Miller,  9;  re- 
mark of  Justice  Miller  to,  17 

Kent,  Chancellor,  value  of  opinions 
of,  36,  127,  128;  commentaries 
of,  50 ;  quotation  from,  119 

Kentucky,  first  settlement  of,  3 ; 
University  of,  3;  citation  of  cases 
in,  36,  124 

Keokuk,   Indian  Chief,   43 

Keokuk  (Iowa),  Miller  moves  to, 
5 ;  quotation  from  newspaper  of, 
14 ;  naming  of,  43 ;  remains  of 
Justice  Miller  taken  to,  58;  Uni- 
tarian Church  at,  59 

Kernan,  Francis,  member  of  Elec- 
toral Commission,  77 

Kirkwood,  Samuel  J.,  public  serv- 
ice of,  vii ;  election  of,  as  Gov- 
ernor, 7;  remarks  of  Miller  con- 
cerning, 7,  8;  interviews  Presi- 
dent Lincoln,  10 

Lamb,    Charles,    quotation  from,    63 

Lathrop,  Henry  W.,  account  of  in- 
terview with  Lincoln  published 
by,  10 

Law,  instinct  of  English  speaking 
people  for,  118;  supremacy  of, 
119 


214 


INDEX 


LeClaire,     Antoine,     explanation    of 
meaning  of  name  "Iowa"  by,  42 
Legal  Tender  Cases,  39 
Lincoln,    Abraham,    civil   chief   dur- 
ing Rebellion,    1;   appointment  of 
Justice   Miller   by,    6,    9,    13;    in- 
terviews    with,      concerning     ap- 
pointment  of  Justice   Miller,    10; 
appointees  of,  to  Supreme  Bench, 
14 
Little  Rock   (Arkansas),   court  held 

by  Justice  Miller  at,  60 
Long  Branch,   interview  at,   55 
Lords,  House  of,  judicial  powers  of, 

129 

Louisiana,   opinion  concerning  pow- 
er of,   in  Slaughter  House  Cases, 
20;    electoral  votes  of,   in  Tilden- 
Hayes   controversy,    31;    standing 
of  courts  of,   39,    134 
Lovejoy  v.  Murray,  case  of,   31 
Luther,   Martin,   theses  of,    149 
McCrary,    George    W.,    comment    of 

Justice  Miller  on,   47 
McCulloch  v.  Maryland,  case  of,   23 
McFarland,   William,   speech  of,    ac- 
cepting  portrait    of    Justice   Mil- 
ler,   73 

McLean,   John,   death  of,    72 
Madison,  James,  signer  of  the  Con- 
stitution, 86;  connection  of,  with 
Annapolis   Convention,    90;   state- 
ment of,  concerning  separation  of 
governmental  powers,    111 
Madison,   Marbury,   v.,    29 
Mansfield,  Lord,  quotation  from  18, 

value  of  opinions  of,  37,  127 
Marbury    v.     Madison,    opinion    in 

case  of,   29 

Marshall,  John,  interpretation  of 
Constitution  by,  2 ;  character  of 
opinions  of,  20;  reference  to  an 
opinion  of,  23 ;  opinion  of,  in 
case  of  Marbury  y.  Madison,  29; 
authority  of  opinions  of,  36,  37, 
127,  128;  services  of,  to  the 
Constitution  of  the  United  States, 
65 

Maryland,  McCulloch,  v.,   23 
Massachusetts,    authority    of    courts 

of,    39,    134 
Massachusetts    Avenue    Home,    61; 

cut    of,    opposite    61 
Maury,    William    A.,    article   of,    on 

Justice   Miller,    26 
Memphis,   Murdoch,   v.,    26 
Methodists,    colleges    established   by, 

in  Iowa,  45 
Mexican  War,  115 
Michigan,   address  of  Justice  Miller 
before  Alumni  Association  of  the 


Law    Department    of    University 
of,    34 

Miller,  Daniel  F.,   Samuel  F.  Miller 
mistaken  for,   15 

Miller,  Irvine,  surviving  son  of  Jus- 
tice Miller,   63 

Miller,  Samuel  Freeman,  portraits 
of,  frontispiece,  opposite  16,  oppo- 
site 51;  editorial  comment  on  ca- 
reer of,  vii ;  opinions  and  writ- 
ings of,  viii ;  loss  of  papers  of, 
ix ;  material  upon  life  of,  xi ; 
services  of,  2 ;  birth  of,  2 ;  early 
life  of,  3 ;  medical  practice  of,  3, 
4;  begins  the  study  of  law,  4; 
candidate  for  office,  4,  5 ;  remov- 
al of,  to  Keokuk  (Iowa),  5;  eman- 
cipates slaves,  5;  marries  Mrs. 
Reeves,  6;  remark  concerning  ap- 
pointment of,  6;  desire  of,  for 
Governorship,  7,  8;  appointment 
of,  to  Supreme  Bench,  9-15 ;  let- 
ter of,  to  Mrs.  Grimes  concern- 
ing appointment,  12 ;  opinion 
concerning  appointment  of,  14, 
15 ;  preparation  of,  for  justice- 
ship, 16 ;  character  and  number 
of  opinions  of,  17;  attitude  of, 
toward  law  and  justice,  18 ; 
problems  met  by,  19 ;  views  of, 
concerning  State  and  Federal 
power,  20 ;  opinion  of,  in  Slaugh- 
ter House  Cases,  20;  last  opin- 
ion written  by,  21;  dissenting 
opinions  of,  25 ;  opinion  of,  in 
case  of  Murdoch  v.  Memphis,  26; 
attitude  of,  toward  State  and 
Federal  government,  28,  29; 
opinion  of,  in  case  of  United 
States  v.  Schurz,  29;  opinions  of, 
in  various  cases,  30,  31;  deci- 
sion of,  quoted  in  English  courts, 
31;  part  of,  in  Tilden-Hayes  con- 
troversy, 32 ;  writings  and  ad- 
dresses of,  33-50;  address  of, 
before  New  York  Bar  Asso- 
ciation, 33,  59 ;  address  of, 
before  Alumni  Association  of 
Law  Department  of  University 
of  Michigan,  34;  address  of,  be- 
fore The  State  University  of 
Iowa,  34;  address  of,  before  the 
Law  Department  of  the  Universi- 
ty of  Pennsylvania,  35;  contribu- 
tion of,  to  Harper's  Magazine,  41; 
death  of,  46;  address  of,  at  Cen- 
tennial of  Constitution,  48;  vol- 
ume of  lectures  and  addresses  of, 
entitled  Miller  on  the  Constitu- 
tion of  the  United  States,  50; 
lack  of  success  of  book  by,  50; 


INDEX 


215 


characterization  of,  51-65;  devo- 
tion of,  to  family  and  relatives, 
51;  letter  of,  to  nephew,  51;  re- 
lation of,  to  other  Justices,  53; 
friendship  of  Chief  Justice  Tan- 
ey  and,  53,  54;  comment  of,  up- 
on Chief  Justice  Taney,  54; 
pressed  for  the  Chief  Justiceship, 
55,  56;  opinion  of,  regarding  re- 
tirement, 57;  visit  of,  to  Colo- 
rado, 57;  death  and  funeral  of, 
58;  prominence  in  Unitarian 
Church,  58,  59;  sternness  of,  on 
the  bench,  59;  quotation  from, 
concerning  overbearing  temper, 
59;  anecdote  concerning,  60;  at- 
titude of,  in  administration  of 
justice,  60;  appearance  of,  61; 
habits  of,  61;  marriage  and 
family  of,  62;  circumstances  of, 
at  death,  63 ;  characterization  of, 
63;  services  of,  to  the  Constitu- 
tion of  the  United  States,  65; 
address  of,  on  The  Formation  of 
the  Constitution,  85;  address  of, 
on  The  Use  and  Value  of  Authori- 
ties in  the  Argument  of  Cases  be- 
fore the  Courts  and  in  the  De- 
cision of  Cases  by  the  Courts, 
123;  address  of,  on  The  Conflict 
in  this  Country  between  Social- 
ism and  Organized  Society,  148; 
A  Calendar  of  the  Opinion*  of, 
175;  dissenting  opinions  of,  199 

Miller  on  the  Constitution  of  the 
United  States,  50 

Miller,  W.  H.  H,,  quotations  from 
6,  18 

Mississippi  River,  settlements  on, 
43 

Mississippi  Valley,  Justice  Miller 
compared  to,  58 

Montesquieu,  doctrine  of,  as  to  sep- 
aration of  powers,  111 

Montrose  (Iowa),  site  of,  43 

Morris,  Gouverneur,  member  of  Con- 
stitutional Convention,  87 

Morris,  Robert,  member  of  Consti- 
tutional Convention,  87 

Morton,  Oliver  P.,  member  of  Elec- 
toral Commission,  77 

Murdock  v.  Memphis,  opinion  of 
Justice  Miller  in  case  of,  26 

Murray,  Love  joy  y.,   31 

Napoleon,  acquisition  of  governmen- 
tal power  by,  103;  despotism  of, 
152 

Napoleon,  Code,  questions  involv- 
ing the,  39,  134 

National  Cyclopaedia  of  American 
Biography,  quotation  from,  9 


National  University  at  Washington, 
lectures  by  Justice  Miller  before, 
49 

Neagle,  In  Re,  case  of,  24 

Nebraska,  memorial  presented  by 
bench  and  bar  of,  63 

New  England  States,  power  of,  in 
the  Senate,  101 

New  Jersey,  represented  in  Annap- 
olis Convention,  90 

New  Orleans,  slaughter  houses  near, 
20 

New  York  (State),  authority  of 
courts  of,  39,  134;  represented 
in  Annapolis  Convention,  90; 
power  of,  in  Senate,  101 

New  York  Bar  Association,  address 
of  Justice  Miller  before,  33,  59 

New  York  Tribune,  quotation  from, 

Nightingale,  Florence,   158 

Noble,  John,  W.,  letter  of,  concern- 
ing Justice  Miller,  73 

North  Carolina,  ratifies  the  Consti- 
tution, 95 

Notes  and  References,  67 

Nourse,  0.  0.,  address  for  State  of 
Iowa  at  Centennial  Celebration 
of  1876  delivered  by,  79 

Obiter  Dicta,  question  of,  126 

Olympic   Council,    confederation   in, 

Opinions  (judicial),  influence  of, 
125;  standing  of  judge  render- 
ing, 127;  value  of,  given  by 
learned  men,  127;  value  of  pre- 
vious, 131;  overruling  of,  132; 
classification  of,  133;  in  the  dif- 
ferent States,  133,  134;  citation 
of,  135;  A  Calendar  of  the,  of 
Justice  Samuel  F  Miller,  175; 
dissenting,  of  Justice  Miller,  199 

Oregon,    elector   from,    81 

Patent  system  of  the  United  States, 
163 

Payne,  Henry  B.,  member  of  Elec- 
toral Commission,  77 

Pennsylvania,  address  of  Justice 
Miller  before  Law  Department  of 
University  of,  35,  123;  authori- 
ty of  courts  of,  89,  134;  repre- 
sented in  Annapolis  Convention, 
90 

Philadelphia,  Centennial  of  the  Con- 
stitution held  at,  48;  meeting  of 
Constitutional  Convention  at,  91 

Philadelphia  <&  Southern  Steamship 
Company  y.  Pennsylvania,  opin- 
ion of  Justice  Miller  in  case  of, 
26 


216 


INDEX 


Plate  of  Justice  Miller,  frontispiece; 
opposite  16;  opposite  51 

Plate  of  the  Massachusetts  Avenue 
Home,  opposite  61 

Portraits  of  Justice  Miller,  frontis- 
piece; opposite  16;  opposite  51 

President  of  the  United  States,  es- 
tablishment of  office  of,  102 ; 
power  of,  104 ;  reelection  of,  106 ; 
power  of  appointment  of,  107 

Proceedings  of  the  Bench  and  Bar 
of  the  Supreme  Court  of  the  Unit- 
ed States  in  Memoriam  Samuel 
F.  Miller,  69 

Public  opinion,  power  of,  145 

Randolph,  Edmund,  member  of  An- 
napolis Convention,  90;  outline 
of  Constitution  by,  92 

Rankin,  J.  W.,  partnership  of,  with 
Samuel  F.  Miller,  70 

Rebellion,  War  of,  1,  116 

Reeves,  Lewis  R.,  partnership  of, 
with  Samuel  F.  Miller,  5;  Sam- 
uel F.  Miller  marries  widow  of, 
5,  62 

Reeves,  Mrs.  Eliza  W.,  Samuel  F. 
Miller  marries,  5,  62 ;  death  of, 
63 

Revolution,  French,  150,   151,  152 

Revolutionary  War,  87,  88 

Reynolds,  John,  treaty  negotiated 
by,  78 

Rhode  Island,  attitude  of,  toward 
Constitutional  Convention,  92 ; 
ratifies  the  Constitution,  93,  95, 
114 

Richmond  (Kentucky),  Samuel  F. 
Miller  born  at,  2;  Samuel  F. 
Miller  studies  in,  3 

Robespierre,  Maximilien,   103 

Rome,  early  civilization  of,  148,  149 

Roosevelt,  Theodore,  appointees  of, 
to  Supreme  Court,  14 

Rousseau,  theory  of  social  contract 
held  by,  112,  150 

Rutledge,  John,  public  office  held 
by,  86 

Sac   Indians,   42,   43 

St.  Louis,  Justice  Miller  holds  court 
at,  57 

Schaeffer,  Charles  A.,  President  of 
The  State  University  of  Iowa,  46 

Schurz,    Carl,    case   involving,    29 

Scott,  Dred,  case  of,  54 

Scott,  Sir  William,  value  of  deci- 
sions of,  37,  129 

Scott,  Winfield,  treaty  negotiated 
by,  78 

Selfishness,  an  instinct  of  mankind, 
158 


Sells,  Elijah,  letter  from  Samuel  F. 
Miller  to,  7 

Senate,  composition  of,  100,  101; 
influence  of,  101;  power  of,  in 
case  of  appointments,  105 

Senate,  French,  103 

Separation  of  governmental  pow- 
ers, 107,  111 

Shambaugh,  Benj.  F.,  editor's  in- 
troduction by,  vii 

Sharon  (Pennsylvania),  Mrs.  Sam- 
uel F.  Miller  born  at,  63 

Shaw,  Lemuel,  value  of  opinions  of, 

36,  127 

Shippen,  Rev.  Dr.,  funeral  service 
of  Justice  Miller  conducted  by, 
58 

Slaughter  House  Cases,  opinion  of 
Justice  Miller  in,  20,  26 

Social  Contract,  Rousseau's  theory 
of,  112,  150 

Socialism,  address  on,  by  Justice 
Miller,  34 

Socialism,  discussion  of  doctrines 
of,  155-171 

Socialism  and  Organized  Society, 
The  Conflict  in  this  Country  be- 
tween, by  Samuel  Freeman  Mil- 
ler, 143 

Socialists,  various  names  and  theo- 
ries of,  154;  activities  of,  168 

South  Carolina,  electoral  votes  of, 
in  Tilden-Hayes  controversy,  31; 
authority  of  courts  of,  39,  134 

Springer,  Francis,  letter  of,  con- 
cerning Justice  Miller,  73 

Stare  Decisis,  doctrine  of,  38 

State  Historical  Society  of  Iowa, 
The,  xi 

State  Rights,  war  fought  for,  29; 
party  of,  109;  failure  of  doc- 
trine of,  110 

State  Tax  on  Railway  Gross  Re- 
ceipts, case  of,  25 

State  University  of  Iowa,  comment 
of  Justice  Miller  on,  45 

State  of  Iowa,  The,  article  by  Jus- 
tice Miller  on,  in  Harper's  Maga- 
zine, 41 

States,  relative  power  of,  under  the 
Constitution,  99 

Stocking,  W.  F.,  marries  daughter 
of  Justice  Miller,  62 

Story,  Joseph,  value  of  opinions  of, 

37,  127;    commentaries    of,    97; 
Story's  Equity,   authority  of,    36, 
125 

Stowell,  Lord,  value  of  opinions  of, 

37,    127,    129 
Strong,  Henry,   address  of,   at  pre- 


INDEX 


217 


sentation  of  portrait  of  Justice 
Miller,  73 

Strong,  William,  commended  bv 
President  Grant,  56,  member  of 
Electoral  Commission,  77 

Supreme  Court  of  the  United  States, 
vii;  reorganization  of,  9;  ap- 
pointment of  Samuel  F.  Miller  to, 
9-15;  appointments  to,  by  Lin- 
coln and  Roosevelt,  14 ;  power 
of,  in  reviewing  cases,  26;  pre- 
eminence of,  129;  A.  Calendar  of 
the  Opinions  of  Justice  Miller 
in,  175 

Swayne,  Noah  H.,  appointment  of, 
to  Supreme  Court,  14;  dissent- 
ing opinion  of,  28,  30;  opinion  of 
President  Grant  concerning,  55 

Switzerland,  the  Constitution  of,  113 

Taney,  Roger  B,  eminence  of,  18 ; 
friendship  of,  for  Justice  Miller, 
53,  54 ;  comment  of  Justice  Mil- 
ler upon,  54;  death  of,  55 

Taxation,  opinion  of  Justice  Miller 
concerning  power  of,  22 

Taylor,  Zachary,  elected  President 
of  the  United  States,  5,  106 

Territorial  growth  of  the  United 
States,  114 

Terry,  David  S.,  shot  by  deputy 
marshal,  25 

Tesson,  Louis  Honore",  trading  post 
of,  43 

Throckmorton,  United  States,  v.,  30 

Thurman,  Allen  G.,  member  of 
Electoral  Commission,  77 

Tilden,  Samuel,  controversy  of,  with 
Hayes  for  Presidency,  31 

Touzalin,  Mrs.  Lida  M.,  surviving 
daughter  of  Justice  Miller,  63 

Towsley,  Johnson,  v.,  30 

Transylvania  University,  Miller  at- 
tends, 3 

Union  Pacific  Railway  Company, 
John  F.  Dillon  attorney  for,  47 

United  States  of  America,  extent 
and  development  of,  114;  wealth 
of,  115;  wars  of,  115,  116;  quo- 
tation from  Chancellor  Kent  up- 
on government  of,  119;  dangers 
to  system  of  government  of,  153 


United  States  v.  Schurz,  case  of,  29 

United  States  v.  ThrocTcmorton, 
case  of,  30 

University  of  Iowa,  address  of  Jus- 
tice Miller  before,  34,  143;  com- 
ment of  Justice  Miller  on,  45 

University  of  Michigan,  address  of 
Justice  Miller  before  Alumni  As- 
sociation of  Law  Department  of, 
34 

University  of  Pennsylvania,  ad- 
dress of  Justice  Miller  before  Law 
Department  of,  35,  123 

Van  Pelt's  administrator,  Calais 
Steamboat  Company  v.,  16 

Virginia,  citation  of  cases  in,  36, 
124;  represented  in  Annapolis 
Convention,  90 

Voltaire,   writings  of,   150 

Waite,  Morrison  R.,  part  of,  in  case 
of  Murdoch  v.  Memphis,  28; 
death  of,  56;  appointment  of,  as 
Chief  Justice,  57 

Washington,  George,  predominance 
of,  in  early  history  of  United 
States,  1;  quotation  from,  con- 
cerning the  Constitution  of  the 
United  States,  65;  President  of 
Constitutional  Convention,  86,  92  ; 
elected  President  of  the  United 
States,  106 

Wealth,  redistribution  of,  155; 
great  increase  of,  166 

Webster's  Dictionary,  reference  to, 
23 

Williams  Judge,  interview  of,  with 
President  Grant,  55 

Wilson,  James,  public  office  held 
by,  86 

Wilson,  James,  F.,  public  service 
of,  vii;  aids  in  securing  appoint- 
ment of  Justice  Miller,  12,  13 

Winter,  maiden  name  of  Mrs.  Jus- 
tice Miller,  63 

Wittenberg,  priest  of,   149 

Woolworth,  J.  M.,  quotations  from, 
6,  17,  64;  memorial  presented 
by,  63 

Zollverein  of  North  Germany,  94, 
95 


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